Human Rights

OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS
IN COOPERATION WITH THE

INTERNATIONAL BAR ASSOCIATION
PROFESSIONAL TRAINING SERIES No. 9
HUMAN RIGHTS IN THE
ADMINISTRATION OF JUSTICE:
A Manual on Human Rights
for Judges, Prosecutors and Lawyers
UNITED NATIONS
New York and Geneva, 2003
CONTENTS
Foreword by the Office of the
United Nations High Commissioner for Human
Rights.................................xxvii
Foreword by the International Bar
Association.................................................xxix
Acknowledgements........................................................................................
.........xxxi
Addendum – Major Recent Developments (2002 – March
2003).................xxxii
Abbreviations.................................................................................................
........xxxiv
Chapter 1
International Human Rights Law and the Role
of the Legal Professions: A General Introduction ................1
Learning
Objectives .....................................................................................................
1
Questions.......................................................................................................
...............1
1.
Introduction ..................................................................................................
........2
2. Origin, Meaning and Scope of International Human Rights
Law................2
2.1 The Charter of the United Nations and the Universal
Declaration of Human Rights ............................................................................2
2.2 The ethical dimension of human
rights ............................................................4
2.3 Human rights and their impact on national and international peace,
security and development....................................................................................5
2.4 The sources of
law................................................................................................6
2.4.1 International
treaties.....................................................................................7
2.4.2 International customary
law..........................................................................8
2.4.3 General principles of law recognized by the community of
nations .................11
2.4.4 Subsidiary means for the determination of rules of
law.................................11
2.5 International human rights law and international humanitarian law:
common concerns and basic differences........................................................12
2.6 Reservations and interpretative declarations to international
human rights treaties..........................................................................................13
2.7 Limitations on the exercise of
rights ...............................................................15
2.8 Derogations from international legal obligations ..........................................16
2.9 International State responsibility for human rights violations ....................17
3. Business Corporations and Human
Rights ....................................................19
4. International Human Rights Law at the Domestic
Level ............................20
4.1 Incorporating international law into domestic legal systems.......................20
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and
Lawyers iii
4.2 The application of international human rights law in domestic
courts: some practical examples.......................................................................22
5. The Role of the Legal Professions in the Implementation of
Human
Rights.....................................................................................................25
6. Concluding
Remarks..........................................................................................25
Chapter 2
The Major Universal Human Rights Instruments and
the Mechanisms for Their Implementation.......................27
Learning
Objectives ...................................................................................................2
7
Questions.......................................................................................................
..............27
1.
Introduction ..................................................................................................
......28
1.1 Scope of the
chapter ..........................................................................................28
1.2 The international treaty-based control mechanisms .....................................28
1.3 Civil and political rights, and economic, social and cultural rights.............30
2. The Major United Nations Human Rights Treaties and their
Implementation .............................................................................................
.....31
2.1 The International Covenant on Civil and Political Rights, 1966,
and its two Protocols, 1966 and 1989 .............................................................31
2.1.1 The undertakings of the States
parties.........................................................31
2.1.2 The rights
recognized ..................................................................................32
2.1.3 Permissible limitations on the exercise of
rights ............................................34
2.1.4 Permissible derogations from legal
obligations ..............................................36
2.1.5 The implementation
mechanisms .................................................................38
2.2 The International Covenant on Economic, Social and Cultural
Rights,
1966.........................................................................................................39
parties.........................................................40
2.2.2 The rights
recognized ..................................................................................40
2.2.3 Permissible limitations on
rights..................................................................41
mechanism ..................................................................42
2.3 The Convention on the Rights of the Child, 1989 and its two
Optional Protocols, 2000 ..................................................................................43
parties.........................................................43
2.3.2 The rights
recognized ..................................................................................44
rights ............................................46
mechanism ..................................................................47
2.4 The Convention on the Prevention and Punishment of the Crime
of Genocide, 1948..............................................................................................47
parties.........................................................48
2.4.2 The legal scope of the
Convention ................................................................48
2.4.3 International crimes: recent legal
developments .............................................49
iv Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
2.5 The International Convention on the Elimination of All Forms
of Racial Discrimination, 1965.........................................................................50
parties.........................................................50
2.5.2 The field of non-discrimination
protected......................................................51
mechanism ..................................................................53
2.6 The Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1984...................................................54
parties.........................................................54
2.6.2 The legal scope of the
Convention ................................................................55
mechanism ..................................................................56
2.7 The Convention on the Elimination of All Forms of Discrimination
against Women, 1979, and its Protocol, 1999................................................58
parties.........................................................58
2.7.2 The specific legal scope of the
Convention .....................................................59
mechanisms .................................................................60
3. Other Instruments Adopted by the United Nations General
Assembly.......................................................................................................
.......61
3.1 The Declaration on the Elimination of All Forms of Intolerance
and of Discrimination Based on Religion or Belief, 1981............................62
3.2 The Basic Principles for the Treatment of Prisoners, 1990.........................62
3.3 The Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, 1988..........................................63
3.4 The United Nations Rules for the Protection of Juveniles
Deprived of their Liberty, 1990 .......................................................................63
3.5 The Principles of Medical Ethics relevant to the Role of Health
Personnel, particularly Physicians, in the Protection of Prisoners
and Detainees against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1982...................................................63
3.6 The Code of Conduct for Law Enforcement Officials, 1979 .....................64
3.7 The United Nations Standard Minimum Rules for Non-custodial
Measures (The Tokyo Rules), 1990 .................................................................64
3.8 The United Nations Guidelines for the Prevention of Juvenile
Delinquency (The Riyadh Guidelines), 1990 .................................................65
3.9 The United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (The Beijing Rules), 1985 .....................65
3.10 The Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, 1985....................................................................65
3.11 The Declaration on the Protection of All Persons from Enforced
Disappearance, 1992 ..........................................................................................66
3.12 The Declaration on the Right and Responsibility of Individuals,
Groups and Organs of Society to Promote and Protect Universally
Recognized Human Rights and Fundamental Freedoms, 1998..................66
4. Instruments adopted by the United Nations Congress on the
Prevention of Crime and the Treatment of
Offenders ................................67
Lawyers v
Contents
5. United Nations Extra-Conventional Mechanisms for Human
Rights
Monitoring ..............................................................................................67
5.1 Special procedures I: Thematic and country mandates................................68
5.2 Special procedures II: The 1503 complaints procedure...............................69
6. Concluding
Remarks..........................................................................................70
Chapter 3
The Major Regional Human Rights Instruments and
the Mechanisms for Their Implementation.......................71
Learning
Objectives ...................................................................................................7
1
Questions.......................................................................................................
..............71
1.
Introduction ..................................................................................................
......72
2. African Human Rights Treaties and their
Implementation.........................72
2.1. The African Charter on Human and Peoples’ Rights, 1981........................72
parties.........................................................73
2.1.2 The individual and collective rights
recognized..............................................73
2.1.3 The individual duties..................................................................................74
rights ............................................75
2.1.5 Derogations from legal
obligations ...............................................................75
mechanism ..................................................................75
2.2 The African Charter on the Rights and Welfare of the Child, 1990 ..........77
parties.........................................................78
2.2.2 The rights
recognized ..................................................................................78
2.2.3 The child’s
duties........................................................................................79
mechanism ..................................................................79
3. American Human Rights Treaties and their
Implementation.....................80
3.1 The American Convention on Human Rights, 1969, and its
Protocols of 1988 and 1990..............................................................................80
parties.........................................................81
3.1.2 The rights
recognized ..................................................................................82
rights ............................................84
obligations ..............................................86
mechanism ..................................................................87
3.2 The Inter-American Convention to Prevent and Punish
Torture, 1985 ......................................................................................................90
3.2.1 The scope of the
Convention ........................................................................90
parties.........................................................90
mechanism ..................................................................91
3.3 The Inter-American Convention on Forced Disappearance
of Persons, 1994 .................................................................................................91
Convention ........................................................................91
parties.........................................................92
viHuman Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
mechanism ..................................................................92
3.4 The Inter-American Convention on the Prevention, Punishment
and Eradication of Violence against Women, 1994......................................93
Convention ........................................................................93
parties.........................................................94
mechanism ..................................................................94
4. European Human Rights Treaties and Their
Implementation ...................95
4.1 The European Convention on Human Rights, 1950, and its
Protocols Nos. 1, 4, 6 and 7 .............................................................................95
parties.........................................................95
4.1.2 The rights
guaranteed .................................................................................95
rights ............................................97
obligations ..............................................99
mechanism ................................................................100
4.2. The European Social Charter, 1961, and its Protocols of 1988,
1991 and
1995...................................................................................................102
parties ......................................................102
4.2.2 The rights
recognized ................................................................................102
4.2.3 Permissible limitation on the exercise of
rights ...........................................103
obligations ............................................104
mechanism ................................................................104
4.3 The European Social Charter (revised), 1996..............................................106
4.4 The European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, 1987..........................107
4.4.1 The undertakings of the States parties and the monitoring
mechanism ...............................................................................................107
4.5 The Framework Convention for the Protection of National
Minorities, 1995................................................................................................108
parties ......................................................109
rights..........................................110
mechanism ................................................................110
5. Concluding
Remarks .......................................................................................111
Chapter 4
Independence and Impartiality of Judges,
Prosecutors and Lawyers.............................................113
Learning
Objectives.................................................................................................11
3
Questions ......................................................................................................
............113
Relevant Legal
Instruments....................................................................................114
1.
Introduction...................................................................................................
...115
2. The Role of Judges, Prosecutors and Lawyers in Upholding the
Rule of Law, Including Human Rights
Standards ......................................115
Lawyers vii
Contents
3. Challenges to the Independence and Impartiality of the Legal
Professions ....................................................................................................
....116
4. International Law and the Independence and Impartiality of the
Judiciary ........................................................................................................
.....117
4.1 Applicable international
law ...........................................................................117
4.2 Basic Principles on the Independence of the Judiciary, 1985 ...................119
4.3 The notions of independence and impartiality: links and
basic differences ...............................................................................................119
4.4 The notion of institutional independence ....................................................120
4.4.1 Independence as to administrative
matters .................................................120
4.4.2 Independence as to financial
matters..........................................................121
4.4.3 Independence as to decision-
making...........................................................121
4.4.4 Jurisdictional
competence...........................................................................122
4.4.5 The right and duty to ensure fair court proceedings and give
reasoned decisions .....................................................................................122
4.5 The notion of individual independence........................................................123
4.5.1 Appointment............................................................................................123
4.5.2 Security of
tenure......................................................................................127
4.5.3 Financial security .....................................................................................128
4.5.4 Promotion ................................................................................................129
4.5.5 Accountability..........................................................................................129
4.5.6 Freedom of expression and
association ......................................................132
4.5.7 Training and education ............................................................................133
4.5.8 The right and duty to ensure fair court proceedings and give
reasoned decisions .....................................................................................134
4.6 The notion of
impartiality...............................................................................135
4.7 Military and other special courts and tribunals............................................139
5. International Law and the Independence of
Prosecutors .........................147
5.1 Guidelines on the Role of Prosecutors, 1990 ..............................................147
5.2 Professional
qualifications ..............................................................................147
5.3 Status and conditions of
service.....................................................................148
5.4 Freedom of expression and
association........................................................148
5.5 The role in criminal
proceedings ...................................................................148
5.6 Alternatives to
prosecution.............................................................................149
5.7
Accountability ...................................................................................................150
6. International Law and the Independence of
Lawyers................................150
6.1 Applicable international
law ...........................................................................150
6.2 Duties and
responsibilities ..............................................................................151
6.3 Guarantees for the functioning of lawyers...................................................151
6.4 Lawyers and fundamental
freedoms .............................................................153
6.4.1 Executive permission to exercise the legal
profession...................................153
6.4.2 The right to peaceful
assembly ...................................................................154
6.4.3 The right to freedom of
association ............................................................155
6.4.4 The right to freedom of
expression .............................................................156
viii Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
6.5 Codes of professional
discipline ....................................................................157
7. Concluding
Remarks .......................................................................................158
Chapter 5
Human Rights and Arrest, Pre-trial Detention
and Administrative Detention......................................159
Learning
Objectives.................................................................................................15
9
Questions ......................................................................................................
............159
Relevant Legal
Instruments....................................................................................160
1.
Introduction...................................................................................................
...161
2. Arrests and Detention without Reasonable Cause: a Persistent
Problem .........................................................................................................
....161
3. The Right to Liberty and Security of the Person: Field of
Applicability of the Legal
Protection ............................................................162
3.1 Universal legal responsibility: All States are bound by the law .................162
3.2 The notion of security of person: State responsibility to act.....................162
4. Lawful Arrests and
Detentions......................................................................163
4.1 The legal
texts ...................................................................................................163
4.2 The notions of lawfulness and arbitrariness: their meaning......................165
4.2.1 Unacknowledged detentions, abductions and involuntary
disappearances..........................................................................................169
4.3 Detention after
conviction..............................................................................172
4.4 Arrest and detention for non-compliance with the lawful order of
a court or in order to secure the fulfilment of any obligation
prescribed by law..............................................................................................173
4.5 Detention on reasonable suspicion of having committed an
offence ...............................................................................................................17
3
4.5.1 The meaning of
“reasonableness” ..............................................................174
4.6 Detention in order to prevent
flight..............................................................175
4.7 Administrative
detention.................................................................................175
4.7.1 Deprivation of liberty for the purpose of educational
supervision .................176
4.7.2 Deprivation of liberty for reasons of mental
health .....................................177
4.7.3 Deprivation of liberty of asylum seekers and for purposes of
deportation and extradition ......................................................................179
4.7.4 Preventive detention and detention for reasons of ordre public
.................180
4.8 The right to be promptly informed of reasons for arrest and
detention and of any charges against oneself...............................................181
4.9 The right to be promptly brought before a judge or other
judicial officer ...................................................................................................185
4.9.1 The legitimate decision-making
organ........................................................189
Lawyers ix
Contents
5. The Right to Trial within a Reasonable Time or to Release
pending
Trial.....................................................................................................190
5.1 The notion of “reasonable
time”...................................................................191
5.2 Alternatives to detention on remand: guarantees to appear at trial..........195
6. The Right to Have the Lawfulness of the Detention Decided
Speedily or Without Delay by a
Court..........................................................197
6.1 The legal procedures complying with this requirement .............................199
6.2 The notions of “speedily” and “without delay” ..........................................206
7. The Right of Access to and Assistance of a
Lawyer...................................208
8. The Right to Compensation in the Event of Unlawful
Deprivation of
Liberty ....................................................................................209
9. Incommunicado
Detention..................................................................................210
10. Concluding
Remarks .......................................................................................211
Chapter 6
The Right to a Fair Trial:
Part I – From Investigation to Trial ..............................213
Learning
Objectives.................................................................................................21
3
Questions ......................................................................................................
............213
Relevant Legal
Instruments....................................................................................214
1.
Introduction...................................................................................................
...215
2. The Effective Protection of the Right to a Fair Trial:
A Global
Challenge..........................................................................................215
3. The Legal
Texts................................................................................................216
4. The Right to Equality before the Law and Equal Treatment
by the
Law.........................................................................................................217
5. The Right to be Presumed Innocent: the Overall Guarantee from
Suspicion to Conviction or
Acquittal............................................................219
6. Human Rights during Criminal
Investigations............................................223
6.1 The right to respect for one’s private life, home and
correspondence.................................................................................................223
6.1.1 Wire tapping............................................................................................224
6.1.2
Searches ...................................................................................................227
6.1.3 Interference with
correspondence.................................................................228
6.2 The right to be treated with humanity and the right to freedom
from torture.......................................................................................................230
6.3 The right to be notified of the charges in a language one
understands .......................................................................................................23
2
x Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
6.4 The right to legal
assistance ............................................................................235
6.5 The right not to be forced to testify against oneself/
The right to remain silent................................................................................240
6.6 The duty to keep records of
interrogation ...................................................243
6.7 The right to adequate time and facilities to prepare one’s defence ..........244
7. Concluding
Remarks .......................................................................................248
Chapter 7
The Right to a Fair Trial:
Part II – From Trial to Final Judgement ........................251
Learning
Objectives.................................................................................................25
1
Questions ......................................................................................................
............251
Relevant Legal
Instruments....................................................................................252
1.
Introduction...................................................................................................
...253
2. The Legal
Provisions .......................................................................................253
3. Human Rights during
Trial.............................................................................253
3.1 The right to be tried by a competent, independent and impartial
tribunal established by law ..............................................................................253
3.2 The right to a fair
hearing ...............................................................................254
3.2.1 The right of access to a court or
tribunal....................................................257
3.2.2 The right to equality of arms and adversarial
proceedings...........................258
3.2.3 The detention of
witnesses .........................................................................261
3.2.4 Judge’s instructions to the
jury...................................................................261
3.3 The right to a public
hearing ..........................................................................262
3.3.1 The right to a public
judgement.................................................................265
3.4 The right to be tried “without undue delay” or
“within a reasonable time”..............................................................................267
3.5 The right to defend oneself in person or through a lawyer of
one’s own choice ..............................................................................................271
3.5.1 The right to effective legal assistance in death penalty
cases .........................274
3.5.2 The right to free legal
aid ..........................................................................277
3.5.3 The right to privileged communications with one’s
lawyer ...........................279
3.6 The right to be present at one’s
trial .............................................................280
3.6.1 Trials in absentia.....................................................................................280
3.7 The right not to be compelled to testify against oneself or to
confess
guilt.......................................................................................................282
3.7.1 Prohibition on the use of evidence obtained through unlawful
means/treatment ......................................................................................283
3.8 The right to call, examine, or have examined, witnesses ...........................285
3.8.1 Anonymous
witnesses ...............................................................................288
Lawyers xi
Contents
3.9 The right to free assistance of an
interpreter ...............................................291
3.10 The right to a reasoned
judgement................................................................293
3.10.1 The lack of a reasoned judgement and capital punishment
cases .................294
3.11 Freedom from ex post facto laws/The principle of nullum crimen
sine
lege.................................................................................................................295
3.12 The principle of ne bis in idem, or prohibition of double jeopardy ............297
4. Limits on
Punishment .....................................................................................301
4.1 The right to benefit from a lighter penalty...................................................301
4.2 Consistency with international legal
standards ............................................301
4.2.1 Corporal punishment................................................................................302
4.2.2 Capital punishment..................................................................................303
5. The Right of
Appeal ........................................................................................305
5.1 The right to full
review....................................................................................306
5.2 The availability of a
judgement ......................................................................307
5.3 Transcripts of the
trial .....................................................................................307
5.4 Preservation of
evidence .................................................................................307
5.5 The right to legal
aid ........................................................................................308
6. The Right to Compensation in the Event of a Miscarriage of
Justice.....309
7. The Right to a Fair Trial and Special
Tribunals ..........................................310
8. The Right to a Fair Trial in Public
Emergencies.........................................311
9. Concluding
Remarks .......................................................................................313
Chapter 8
International Legal Standards for the Protection of
Persons Deprived of Their Liberty ................................315
Learning
Objectives.................................................................................................31
5
Questions ......................................................................................................
............315
Relevant Legal
Instruments....................................................................................316
1.
Introduction...................................................................................................
...317
1.1 Use of
terms......................................................................................................318
2. The Prohibition of Torture and Cruel, Inhuman or Degrading
Treatment or
Punishment...............................................................................318
2.1 Introductory
remarks.......................................................................................318
2.2 Legal responsibilities of
States .......................................................................319
2.3 The notions of torture and cruel, inhuman or degrading treatment
or punishment: definitions and understandings ..........................................323
2.3.1 Rape as torture ........................................................................................325
2.3.2 Treatment of detainees and
prisoners.........................................................327
xii Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
2.3.3 Corporal punishment................................................................................330
2.3.4 Medical or scientific
experimentation.........................................................331
2.4 Torture and law enforcement officials, health personnel and
prosecutors........................................................................................................332
3. Legal Requirements as to Places of Detention and Registration of
Detainees and
Prisoners..................................................................................334
3.1 Official recognition of all places of detention .............................................334
3.2 Registration of detainees and
prisoners ........................................................335
4. Conditions of Detention and
Imprisonment...............................................337
4.1 Basic principles governing detention and imprisonment...........................337
4.2
Accommodation...............................................................................................339
4.2.1 Separation of
categories.............................................................................341
4.3 Personal hygiene, food, health and medical
services ..................................342
4.4
Religion ..............................................................................................................34
8
4.5 Recreational
activities ......................................................................................349
4.6 Solitary
confinement........................................................................................350
4.6.1 Incommunicado
detention..........................................................................352
5. Contacts with the Outside
World..................................................................356
5.1 Contact with family members and friends: visits and
correspondence.................................................................................................356
5.1.1 The rights of visitors to detainees and
prisoners..........................................358
5.2 Contact with lawyers: visits and correspondence........................................360
6. Inspection of Places of Detention and Complaints
Procedures ..............365
6.1 Inspection of places of
detention ..................................................................365
6.2 Complaints
procedures....................................................................................366
7. The Role of Judges, Prosecutors and Lawyers in Preventing and
Remedying Unlawful Treatment of Persons Deprived of their
Liberty............................................................................................................
....369
8. Concluding
Remarks ......................................................................................370
Chapter 9
The Use of Non-Custodial Measures in the
Administration of Justice ............................................371
Learning
Objectives.................................................................................................37
1
Questions ......................................................................................................
............371
Relevant Legal
Instruments....................................................................................372
1.
Introduction...................................................................................................
...373
1.1 The purpose of non-custodial measures and the Tokyo Rules.................373
Lawyers xiii
Contents
2.
Terminology...................................................................................................
...374
2.1 The term “non-custodial
measures” .............................................................374
2.2 The term
“offender”........................................................................................374
2.3 The term “competent
authority” ...................................................................375
3. General Principles Relating to Non-custodial
Measures ...........................375
3.1 The fundamental aims of non-custodial measures .....................................375
3.2 The scope of non-custodial
measures...........................................................377
3.2.1 The general scope of non-custodial
measures...............................................377
3.2.2 The prohibition of
discrimination ..............................................................377
3.2.3 Flexibility in application ..........................................................................378
3.3 Legal
safeguards................................................................................................380
3.3.1 The principle of
legality.............................................................................380
3.3.2 The criteria for resorting to non-custodial measures and the need for
discretion..................................................................................................380
3.3.3 The requirement of
consent........................................................................381
3.3.4 The right to
review....................................................................................381
3.3.5 Restrictions on the imposition of non-custodial
measures ............................382
4. Non-custodial Options at the Different Stages of the Judicial
Process..........................................................................................................
.....384
4.1 Non-custodial measures at the pre-trial
stage..............................................384
4.2 Non-custodial measures at the trial and sentencing stage .........................385
4.3 Non-custodial measures at the post-sentencing
stage ................................387
5. Implementation of Non-custodial
Measures...............................................389
5.1 The supervision of non-custodial measures.................................................389
5.2 The duration of non-custodial measures......................................................391
5.3 The conditions attached to non-custodial measures ..................................391
5.4 The treatment
process .....................................................................................392
5.5 Discipline and breach of
conditions..............................................................393
6. The Role of Judges, Prosecutors and Lawyers in Choosing
Alternatives to
Imprisonment........................................................................395
7. Concluding
Remarks .......................................................................................396
Chapter 10
The Rights of the Child in the Administration of Justice ....397
Learning
Objectives.................................................................................................39
7
Questions ......................................................................................................
............397
Relevant Legal
Instruments....................................................................................398
1.
Introduction...................................................................................................
...399
1.1
Terminology......................................................................................................400
xiv Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
2. The Administration of Justice and Children: Persistent
Concerns ..........400
3. The Definition of
“Child” ..............................................................................401
3.1 The age of majority in
general........................................................................401
3.2 The age of criminal
responsibility..................................................................401
4. The Rights of the Child in the Administration of Justice:
Some Basic
Principles......................................................................................404
4.1 The principle of non-discrimination .............................................................404
4.2 The best interests of the
child ........................................................................405
4.3 The child’s right to life, survival and development.....................................406
4.4 The child’s right to be
heard...........................................................................407
5. The Aims of Juvenile
Justice ..........................................................................408
6. The Duty to Create a Juvenile Justice
System .............................................411
7. The Accused Child and the Administration of
Justice...............................411
7.1 The right to freedom from torture and from cruel, inhuman or
degrading treatment or punishment ..............................................................412
7.2 General treatment of the child/the child’s best interests...........................413
7.3 Some fundamental procedural
rights ............................................................414
7.3.1 The principle of nullum crimen sine lege .............................................414
7.3.2 The right to be presumed
innocent .............................................................415
7.3.3 The right to prompt information and the right to legal
assistance................415
7.3.4 The right to be tried without
delay.............................................................416
7.3.5 The right not to incriminate oneself and the right to examine and
have witnesses...........................................................................................417
7.3.6 The right to
review....................................................................................417
7.3.7 The right to free assistance of an
interpreter ...............................................418
7.3.8 The right to respect for
privacy ..................................................................418
8. The Child and Deprivation of
Liberty..........................................................420
8.1 The meaning of deprivation of
liberty ..........................................................421
8.2 Deprivation of liberty: a measure of last
resort ...........................................421
8.3 The rights of the child deprived of liberty ...................................................422
8.3.1 The right to humane
treatment..................................................................422
8.3.2 The right of the child to be separated from
adults.......................................423
8.3.3 The right of the child to remain in contact with his or her
family ................424
8.3.4 The child’s rights to prompt access to legal assistance and to legal
challenge of detention ................................................................................424
8.3.5 The child and the general conditions of
detention........................................425
8.3.6 The rights of the child and disciplinary
measures .......................................427
9. The Rights of the Child and Penal
Sanctions ..............................................429
10. The Accused Child and the Question of
Diversion ...................................430
10.1 The meaning of the term
“diversion”...........................................................430
10.2 Diversion and the responsible
authorities....................................................431
Lawyers xv
Contents
10.3 Diversion and consent of the
child ...............................................................432
11. The Child as Victim or Witness in Judicial
Proceedings............................433
12. The Child and His or Her Parents: When Separation May be
Justified .........................................................................................................
.....436
12.1 The best interests of the
child ........................................................................436
12.2 The grounds justifying
separation..................................................................436
12.3 The legal
safeguards.........................................................................................437
12.4 The child’s right to remain in contact with his or her parents ..................438
13. The Rights of the Child and Adoption
Proceedings ..................................439
14. The Role of Judges, Prosecutors and Lawyers in Guaranteeing the
Rights of the Child in the Course of the Administration of Justice.........442
15. Concluding
Remarks .......................................................................................443
Chapter 11
Women’s Rights in the Administration of Justice ............445
Learning
Objectives.................................................................................................44
5
Questions ......................................................................................................
............445
Relevant Legal
Instruments....................................................................................446
1.
Introduction...................................................................................................
...447
2. Women’s Right to Legal
Personality.............................................................449
3. Women’s Right to Equality Before the Law and Equal
Protection of the
Law......................................................................................450
3.1 The Charter of the United Nations and the International Bill of
Human Rights...................................................................................................450
3.2 The Convention on the Elimination of All Forms of
Discrimination against Women, 1979...........................................................450
3.3 Regional human rights
treaties .......................................................................453
3.4 The meaning of the principle of gender equality and
non-discrimination between women and men ............................................453
3.4.1 The general meaning of equality and non-
discrimination ............................454
3.4.2 The meaning of equality between women and
men......................................454
4. Women’s Right to Respect for their Life and their Physical and
Mental
Integrity ................................................................................................458
4.1 Relevant legal
provisions.................................................................................458
4.2 The right to
life.................................................................................................461
4.2.1 Abduction and murder.............................................................................461
4.2.2 Dowry violence and “honour” killings.......................................................462
4.2.3 Female genital
mutilation .........................................................................463
xvi Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
4.2.4 Abortion..................................................................................................464
4.2.5 Infant mortality and life
expectancy ..........................................................465
4.3 The right to freedom from torture and other cruel, inhuman or
4.3.1 Violence against women deprived of their
liberty ........................................467
4.3.2 Unlawful punishments .............................................................................469
4.3.3 Violence against women and the girl child in families and the
community in general ................................................................................472
4.4 Violence against women as crimes against humanity and
war
crimes..........................................................................................................477
5. Women’s Right to Freedom from Slavery, the Slave Trade,
Forced and Compulsory Labour, and
Trafficking ......................................478
5.1 Relevant legal
provisions.................................................................................478
5.1.1 Slavery, the slave trade and
servitude ........................................................478
5.1.2 Forced and compulsory
labour...................................................................479
5.1.3 Trafficking...............................................................................................479
5.2 The practice of slavery, forced and compulsory labour, and
trafficking in women........................................................................................481
6. The Right to Equality in respect of
Marriage ..............................................484
6.1 The right of intending spouses to marry freely and to found
a
family...............................................................................................................484
6.1.1 Polygamous
marriages ..............................................................................486
6.1.2 The marriageable
age................................................................................487
6.1.3 Other de jure and de facto impediments to the right to marry
freely.............488
6.1.4 Restrictions on
remarriage.........................................................................489
6.1.5 Registration of
marriages ..........................................................................490
6.1.6 Meaning of the right to found a
family ......................................................491
6.2 Equality of rights in terms of nationality laws .............................................493
6.3 The equal right to a
name ...............................................................................495
6.4 Equal rights and responsibilities of spouses as to marriage,
during marriage and at its dissolution ...........................................................496
6.4.1 Relevant legal
provisions ...........................................................................496
6.4.2 General understanding of the principle of equal rights and
responsibilities ..........................................................................................497
6.4.3 Equal right to decision-making.................................................................498
6.4.4 Equal parental rights and
responsibilities .................................................498
6.4.5 Equal rights to marital
property ...............................................................499
6.4.6 The equal right to a profession and an
occupation......................................500
6.4.7 Women living in de facto
unions ...............................................................500
6.4.8 Equality with respect to
divorce.................................................................501
6.4.9 The equal right of succession between
spouses.............................................501
7. The Equal Right to Legal Capacity in Civil
Matters ...................................502
7.1 Equal rights to administer property and conclude contracts ....................502
7.2 The equal right to succession in
general.......................................................504
Lawyers xvii
Contents
8. The Right to Equal Participation in Public Affairs, including
Elections........................................................................................................
....505
8.1 Relevant legal
provisions.................................................................................505
8.2 The interpretation of article 25 of the International Covenant on
Civil and Political Rights .................................................................................507
8.3 The interpretation of articles 7 and 8 of the Convention on the
Elimination of All Forms of Discrimination against Women...................508
9. Women’s Right to Equal Enjoyment of Other Human
Rights ................511
9.1 The right to freedom of movement and residence .....................................511
9.2 The right to
privacy..........................................................................................512
9.3 Freedom of thought, conscience, belief, religion, opinion,
expression, association and assembly............................................................513
9.4 The right to
education .....................................................................................514
10. Women’s Right to an Effective Remedy, including the Right of
Access to the Courts and Due Process of
Law...........................................516
11. The Role of Judges, Prosecutors and Lawyers in Ensuring
Protection of the Rights of
Women..............................................................519
12. Concluding
Remarks .......................................................................................520
Chapter 12
Some Other Key Rights: Freedom of Thought,
Conscience, Religion, Opinion, Expression, Association
and Assembly ...........................................................521
Learning
Objectives.................................................................................................52
1
Questions ......................................................................................................
............521
Relevant Legal
Instruments....................................................................................522
1.
Introduction...................................................................................................
...523
2. The Right to Freedom of Thought, Conscience and
Religion..................524
2.1 Relevant legal
provisions.................................................................................524
2.2 General meaning of the right to freedom of thought, conscience
and religion........................................................................................................525
2.2.1 Article 18 of the International Covenant on Civil and Political
Rights ......................................................................................................525
2.2.2 Article 8 of the African Charter on Human and Peoples’ Rights..............527
2.2.3 Article 12 of the American Convention on Human Rights .......................527
2.2.4 Article 9 of the European Convention on Human Rights .........................528
2.3 The right to manifest one’s religion or belief...............................................530
2.3.1 Limitations on the right to manifest one’s religion or
belief.........................533
2.3.2 Prohibitions on the freedom to manifest one’s religion or
belief ....................540
xviii Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Prosecutors and Lawyers
Contents
2.4 Freedom of religion and public school instruction.....................................540
2.5 State religion and religious
minorities ...........................................................543
2.6 Conscientious objection on religious grounds.............................................544
3. The Right to Freedom of Opinion and
Expression ...................................546
3.1 Relevant legal
provisions.................................................................................546
3.2 Article 19 of the International Covenant on Civil and Political
Rights .................................................................................................................54
8
3.2.1 Choice of language in
court .......................................................................549
3.2.2 Advertising ..............................................................................................549
3.2.3 Defamation and dissemination of false
information ...................................550
3.2.4 Denial of crimes against humanity and advocacy of
hatred .........................552
3.2.5 Threats to national security and public
order .............................................554
3.2.6 Freedom of the
press .................................................................................557
3.2.7 Human rights
defenders............................................................................561
3.3 Article 9 of the African Charter on Human and Peoples’ Rights.............561
press .................................................................................562
3.3.2 Freedom to express
opinions .....................................................................564
3.3.3 Human rights
defenders............................................................................564
3.4 Article 13 of the American Convention on Human Rights.......................565
3.4.1 The individual and collective dimensions of freedom of expression,
including the role of the mass media ..........................................................567
3.4.2 Freedom of expression and the concept of public order in a democratic
society ......................................................................................................570
3.4.3 Restrictions on freedom of expression: Meaning of the term
“necessary to ensure” ................................................................................571
3.4.4 Indirect control of the mass media: The case of
Ivcher Bronstein v. Peru ....................................................................572
3.4.5 Article 13(2) and the Compulsory Licensing of Journalists case ......573
3.5 Article 10 of the European Convention on Human Rights ......................575
3.5.1 Basic interpretative approach to freedom of
expression................................576
press .................................................................................579
3.5.3 Freedom of expression of elected members of professional
organizations.......589
3.5.4 Freedom of expression of elected
politicians ................................................592
3.5.5 Freedom of artistic
expression ...................................................................594
4. The Rights to Freedom of Association and
Assembly...............................597
4.1 Relevant legal
provisions.................................................................................597
4.2 Articles 21 and 22 of the International Covenant on Civil and
Political Rights ..................................................................................................599
4.2.1 Origin and meaning of the “in a democratic society”
concept.......................599
4.2.2 Freedom of
association..............................................................................601
4.2.3 Freedom of
assembly.................................................................................602
4.3. Articles 10 and 11 of the African Charter on Human and
Peoples’ Rights..................................................................................................604
4.3.1 Freedom of
association..............................................................................604
4.4 Articles 15 and 16 of the American Convention on Human Rights........606
Lawyers xix
Contents
4.5 Article 11 of the European Convention on Human Rights ......................608
4.5.1 Freedom of association, trade unions and the closed shop
system.................609
4.5.2 Trade unions and collective
agreements ......................................................612
4.5.3 Freedom of association and political
parties ...............................................614
4.5.4 A lawyer’s right to freedom of
assembly.....................................................627
5. The Role of Judges, Prosecutors and Lawyers in Ensuring
Protection of Freedom of Thought, Conscience, Religion, Opinion,
Expression, Association and
Assembly........................................................629
6. Concluding
Remarks .......................................................................................630
Chapter 13
The Right to Equality and Non-Discrimination
in the Administration of Justice ...................................631
Learning
Objectives.................................................................................................63
1
Questions ......................................................................................................
............631
Relevant Legal
Instruments....................................................................................632
1.
Introduction...................................................................................................
...633
1.1 Discrimination: A persistent serious human rights violation ....................633
1.2 The role of judges, prosecutors and lawyers in protecting persons
against discrimination ......................................................................................634
1.3 Glimpses of international legal
history .........................................................634
1.4 The purpose and scope of the present
chapter ...........................................635
2. Selected Universal Legal Provisions Guaranteeing the Right to
Equality before the Law and the Right to Non-discrimination ................636
2.1 Universal Declaration of Human Rights, 1948............................................636
2.2 Convention on the Prevention and Punishment of the Crime of
Genocide, 1948.................................................................................................637
2.3 International Covenant on Civil and Political Rights, 1966 ......................638
2.4 International Covenant on Economic, Social and Cultural
Rights,
1966.......................................................................................................639
2.5 International Convention on the Elimination of All Forms of
Racial Discrimination, 1965............................................................................639
2.6 Convention on the Rights of the Child, 1989..............................................640
2.7 Convention on the Elimination of All Forms of Discrimination
against Women, 1979.......................................................................................641
2.8 Declaration on the Elimination of All Forms of Intolerance and
of Discrimination Based on Religion or Belief, 1981.................................642
2.9 Declaration on the Rights of Persons Belonging to National or
Ethnic, Religious and Linguistic Minorities, 1992.......................................642
xx Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
3. Selected Regional Legal Provisions Guaranteeing the Right to
Equality before the Law and the Right to Non-discrimination ................643
3.1 African Charter on Human and Peoples’ Rights, 1981..............................643
3.2 African Charter on the Rights and Welfare of the Child, 1990 ................644
3.3 American Convention on Human Rights, 1969..........................................644
3.4 Additional Protocol to the American Convention on Human
Rights in the Area of Economic, Social and Cultural Rights, 1988..........645
3.5 Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women, 1994 ...........................................645
3.6 Inter-American Convention on the Elimination of All Forms of
Discrimination against Persons with Disabilities, 1999..............................646
3.7 European Convention on Human Rights, 1950..........................................646
3.8 European Social Charter, 1961, and European Social Charter
(revised),
1996...................................................................................................647
3.9 Framework Convention for the Protection of National
Minorities, 1994................................................................................................648
4. The Prohibition of Discrimination and Public
Emergencies....................649
5. The General Meaning of Equality and Non-
Discrimination ....................651
6. Selected International Case Law and Legal Comments on the
Right to Equality and the Prohibition of Discrimination ..........................656
6.1 Race, colour or ethnic
origin ..........................................................................656
6.1.1 Racial slurs..............................................................................................656
6.1.2 The right to freedom of movement and
residence .........................................657
6.1.3 Racial and ethnic discrimination in law
enforcement ..................................658
6.1.4 Racial discrimination in ensuring economic, social and cultural
rights.........658
6.2
Gender ...............................................................................................................65
9
6.2.1 The right to represent matrimonial
property...............................................659
6.2.2 Right to respect for family
life....................................................................659
6.2.3 Preferential pension
rights .........................................................................661
6.2.4 Social security
benefits ..............................................................................662
6.2.5 Contributions to general child-care benefit
schemes .....................................662
6.2.6 Parental leave
allowance ...........................................................................663
6.2.7 Acquisition of citizenship .........................................................................664
6.3
Language............................................................................................................66
5
6.4 Religion or
belief ..............................................................................................666
6.4.1 Conscientious objection to military
service ..................................................666
6.4.2 Duty to wear safety gear at
work ..............................................................668
6.4.3 Public funding of religious
schools..............................................................669
6.4.4 Lack of public-law status for purposes of bringing court
proceedings ...........669
6.5
Property .............................................................................................................67
0
6.6 Birth or other
status.........................................................................................671
6.6.1 Social security benefits for married/unmarried
couples ...............................671
6.6.2 Inheritance
rights......................................................................................672
6.6.3. Conditions of birth or descent for presidential
candidates............................673
Lawyers xxi
Contents
6.7 National
origin..................................................................................................674
6.8 Sexual
orientation.............................................................................................675
6.9
Minorities...........................................................................................................676
6.9.1 Right to one’s own
culture.........................................................................676
6.9.2 Right to reside in an Indian
reserve...........................................................677
7. Concluding
Remarks .......................................................................................678
Chapter 14
The Role of the Courts in Protecting Economic,
Social and Cultural Rights ...........................................681
Learning
Objectives.................................................................................................68
1
Questions ......................................................................................................
............681
Relevant Legal
Instruments....................................................................................682
1.
Introduction...................................................................................................
...683
2. History Revisited: Why are there Two International Covenants
on Human
Rights? ...........................................................................................683
2.1 A chronological
overview ...............................................................................683
2.2. The substance of the
debates .........................................................................686
2.2.1 Principal arguments in favour of one
covenant ...........................................686
2.2.2 Principal arguments in favour of two
covenants..........................................687
2.2.3 Pleadings in favour of a practical
solution..................................................689
2.2.4 The question of
justiciability .....................................................................690
3. Interdependence and Indivisibility of Human
Rights ................................692
4. Universal and Regional Treaties for the Protection of Economic,
Social and Cultural Rights: The Rights
Guaranteed ...................................696
4.1 The universal
level............................................................................................696
4.1.1 International Covenant on Economic, Social and Cultural
Rights, 1966 ...........................................................................................696
4.2 The regional
level .............................................................................................697
4.2.1 African Charter on Human and Peoples’ Rights, 1981 ...........................697
4.2.2 American Convention on Human Rights, 1969, including the Additional
Protocol in the Area of Economic, Social and Cultural Rights, 1988 .............698
4.2.3 European Social Charter, 1961, and European Social Charter
(revised), 1996.........................................................................................699
5. The Legal Obligations of States to Protect Economic, Social
and Cultural
Rights ..........................................................................................701
5.1 International Covenant on Economic, Social and Cultural
Rights,
1966.......................................................................................................701
5.1.1 Introductory remarks................................................................................701
5.1.2 The obligation of
conduct ..........................................................................702
xxii Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Contents
5.1.3 The obligation of
result .............................................................................703
5.1.4 The obligation to give effect: the provision of domestic
remedies ...................704
5.2 African Charter on Human and Peoples’ Rights, 1981..............................705
5.3 American Convention on Human Rights, 1969, and
Additional Protocol in the Area of Economic, Social and
Cultural Rights, 1988 .......................................................................................706
5.4 European Social Charter, 1961, and European Social Charter
(revised),
1996...................................................................................................706
6. Economic, Social and Cultural Rights: Are they
Justiciable? ....................707
7. Case Study I: The Right to Adequate
Housing ...........................................710
7.1 Introductory
remarks.......................................................................................710
7.2 International Covenant on Economic, Social and Cultural Rights:
article
11(1)........................................................................................................711
7.2.1 Persons covered by the
right.......................................................................712
7.2.2 Interpretative approach, including interdependence of
rights ........................713
7.2.3 The concept of
adequacy............................................................................713
7.2.4 Immediate legal
obligations .......................................................................714
7.2.5 Domestic
remedies ....................................................................................715
7.2.6 Forced
evictions ........................................................................................716
7.3 Relevant European case law: The Selçuk and Asker
case ............................719
7.4 Relevant domestic case law: The example of South Africa .......................721
8. Case Study II: The Right to
Health...............................................................730
8.1 International Covenant on Economic, Social and Cultural Rights:
article
12.............................................................................................................730
8.1.1 The normative content of article
12(1) ......................................................731
8.1.2 The meaning of the provisions in article
12(2)...........................................732
8.1.3 The obligations of States
parties................................................................734
8.1.4 The core
obligations ..................................................................................736
8.1.5 Violations of article 12 ............................................................................737
8.1.6 Implementation at the national
level..........................................................738
8.2 Relevant domestic case law I: The example of Canada..............................740
8.3 Relevant domestic case law II: The example of India ................................744
9. The Role of Judges, Prosecutors and Lawyers in the Protection of
Economic, Social and Cultural Rights: Lessons
Learned ..........................748
10. Concluding
Remarks .......................................................................................748
Chapter 15
Protection and Redress for Victims of Crime and
Human Rights Violations ............................................749
Learning
Objectives.................................................................................................74
9
Questions ......................................................................................................
............749
Lawyers xxiii
Contents
Relevant Legal
Instruments....................................................................................750
1.
Introduction...................................................................................................
...751
2. Protection and Redress for Victims of
Crime .............................................753
2.1 Relevant legal
provisions.................................................................................753
2.1.1 The universal
level ....................................................................................753
2.1.2 The regional
level......................................................................................754
2.2 The notion of
victim........................................................................................756
2.3 Treatment of victims in the administration of justice ................................758
2.3.1 Treatment of victims by the
police..............................................................758
2.3.2 Treatment of victims by the
prosecution .....................................................761
2.3.3 Questioning of victims during criminal
procedures ......................................762
2.3.4 Victims and criminal court
proceedings .....................................................763
2.3.5 Victims’ right to protection of their private life and their
safety ..................764
2.4 Restitution, compensation and assistance to victims of crime..................765
2.4.1 General remarks ......................................................................................765
2.4.2 Restitution ...............................................................................................766
2.4.3
Compensation ..........................................................................................766
2.4.4 Assistance................................................................................................771
3. Protection and Redress for Victims of Human Rights
Violations ...........773
3.1 The notion of
victim........................................................................................774
3.2 The general legal duty to ensure the effective protection of
human
rights .....................................................................................................776
3.2.1 The universal
level ....................................................................................776
3.2.2 The regional
level......................................................................................776
3.3 The duty to prevent human rights violations...............................................780
3.3.1 The universal
level ....................................................................................780
3.3.2 The regional
level......................................................................................781
3.4 The duty to provide domestic
remedies .......................................................783
3.4.1 The universal
level ....................................................................................783
3.4.2 The regional
level......................................................................................786
3.5 The duty to investigate, prosecute and
punish ............................................792
3.5.1 The universal
level ....................................................................................793
3.5.2 The regional
level......................................................................................796
3.5.3 The role of victims during investigations and court
proceedings....................799
3.6 The duty to provide redress for human rights violations ..........................801
3.6.1 Restitution and
compensation ...................................................................801
3.6.2 Rehabilitation ..........................................................................................803
3.7 The problem of impunity for human rights violations ..............................805
3.7.1 Impunity from a legal
perspective...............................................................805
3.7.2 Justice, impunity and
reconciliation ...........................................................808
4. The Role of Judges, Prosecutors and Lawyers in Ensuring Justice
for Victims of Crime and Human Rights Violations..................................809
5. Concluding
Remarks .......................................................................................809
xxiv Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Contents
Chapter 16
The Administration of Justice During
States of Emergency ..................................................811
Learning
Objectives.................................................................................................81
1
Questions ......................................................................................................
............811
Relevant Legal
Instruments....................................................................................812
1.
Introduction...................................................................................................
...813
1.1 General introductory
remarks ........................................................................813
1.2 Introductory remarks on limitations and derogations
in the field of human rights ............................................................................814
2. The Notion of Public Emergency in International
Human Rights
Law..........................................................................................815
2.1 Relevant legal
provisions.................................................................................815
2.1.1 Derogations and the African Charter on Human and
Peoples’ Rights .........................................................................................816
2.2. Derogations from legal obligations: A dilemma for the drafters..............816
2.3 The interpretation of the international monitoring bodies........................821
2.3.1 Article 4(1) of the International Covenant on Civil and
Political Rights ........................................................................................821
2.3.2 Article 27(1) of the American Convention on Human Rights ..................825
2.3.3 Article 15(1) of the European Convention on Human Rights...................827
3. Non-Derogable Rights and Obligations in International
Human Rights
Law..........................................................................................831
3.1 Introductory
remarks.......................................................................................831
3.2 Relevant legal
provisions.................................................................................832
3.3 The right to
life.................................................................................................833
3.4 The right to freedom from torture and from cruel, inhuman or
3.5 The right to humane
treatment......................................................................837
3.6 The right to freedom from slavery and servitude. ......................................838
3.7 The right to freedom from ex post facto laws and the principle
of ne bis in
idem...................................................................................................839
3.7.1 The prohibition of ex post facto
laws.........................................................839
3.7.2 The principle of ne bis in idem ..............................................................840
3.8 The right to recognition as a legal
person ....................................................842
3.9 The right to freedom of thought, conscience and religion ........................842
3.10 The right not to be imprisoned merely on the ground of inability
to fulfil a contractual obligation.....................................................................843
3.11 The rights of the
family...................................................................................844
3.12 The right to a
name..........................................................................................844
Lawyers xxv
Contents
3.13 The rights of the
child .....................................................................................845
3.14 The right to a
nationality.................................................................................846
3.15 The right to participate in
government.........................................................847
3.16 Non-derogable rights and the right to effective procedural and
judicial protection.............................................................................................847
4. Derogable Rights and the Condition of Strict
Necessity...........................852
4.1 General interpretative
approach ....................................................................853
4.1.1 Article 4(1) of the International Covenant on Civil and
Political Rights ........................................................................................853
4.1.2 Article 27(1) of the American Convention on Human Rights ..................854
4.1.3 Article 15(1) of the European Convention on Human Rights...................855
4.2 The right to effective
remedies ......................................................................856
4.3. The right to liberty and special powers of arrest and detention ...............857
4.4 The right to a fair trial and special
tribunals ................................................868
5. The Condition of Consistency with Other International
Legal
Obligations .............................................................................................877
6. The Condition of Non-
Discrimination ........................................................879
7. The Condition of International
Notification...............................................881
8. The Role of Judges, Prosecutors and Lawyers in Ensuring the
Effective Protection of Human Rights in Emergency Situations ............884
9. Concluding
Remarks .......................................................................................885
xxvi Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Contents
NOTE
The designations employed and the presentation of the material in this publication
do not imply the expression of any opinion whatsoever on the part of the Secretariat of the
United Nations concerning the legal status of any country, territory, city or area, or of its
authorities, or concerning the delimitation of its frontiers or boundaries.
*
**
Material contained in this series may be freely quoted or reprinted, provided credit is
given and a copy of the publication containing the reprinted material is sent to the Office
of the High Commissioner for Human Rights, United Nations, 1211 Geneva 10,
Switzerland.
HR/P/PT/9
UNITED NATIONS PUBLICATION
Sales No. E.02.XIV.3
ISBN 92-1-154141-7
ISSN 1020-1688
FOREWORD
by the
Office of the United Nations High Commissioner
for Human Rights
The way in which justice is administered in a society is one of the basic
indicators of its
well-being. As highlighted by the Universal Declaration of Human Rights, “...it is
essential, if man is not
to be compelled to have recourse, as a last resort, to rebellion against tyranny
and oppression, that
human rights should be protected by the rule of law”.1 It is for national legal
systems and the
administration of justice to ensure that this goal is achieved.
Independent legal professions play a fundamental role in the protection of
human rights.
They are the guardians of international human rights law, ensuring that it is
properly enforced within
the judicial process and that individuals whose rights have been violated can find
an effective remedy
domestically. In order to discharge this responsibility, judges, prosecutors and
lawyers need to have
access to information on the human rights standards laid down in the main
international legal
instruments and to the related jurisprudence developed by universal and
regional monitoring bodies.
For many years, the Office of the United Nations High Commissioner for
Human Rights
has been supporting projects aimed at promoting human rights among the
professions responsible for
the administration of justice, projects that have addressed judges, prosecutors
and lawyers on all
continents. In the framework of the United Nations Decade for Human Rights
Education
(1995-2004), and in partnership with professional associations, the Office has
developed relevant
methodological tools.
HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE, composed of a Manual and
a Facilitator’s Guide, is the result of a joint endeavour with the International
Bar Association, a key
international legal organization with more than 180 member bar associations
and law societies. Its
objective is to provide a comprehensive core curriculum on international human
rights standards for
legal professionals.
Readers of the Manual are offered basic information on international human
rights law and the
jurisprudence of universal and regional bodies and national courts. Each module
addresses a specific
human rights area. In view of the nature of the legal professions, the Manual
should have multiple
applications: as training material for collective exercises, as a resource tool for
carrying out individual
studies, and as a reference source for the interpretation and application of the
law.
The Manual is complemented by the Facilitator’s Guide, which aims at
assisting training
managers and resource persons engaged in organizing workshops or courses –
from the planning stage
to the stage of final evaluation. For each of the Manual’s modules, the Guide
includes suggested
training aids such as overheads, exercises, case studies and role plays. It is
based on an interactive
training methodology which encourages participants to play an active role,
contributing their
professional expertise to the joint study on how to apply international human
rights standards
effectively.
Lawyers xxvii
1Universal Declaration of Human Rights, third preambular paragraph.
The Manual and the Guide should be used with a substantial degree of
flexibility. While they
target a specific audience, it may be necessary to make a selection of the most
appropriate material.
Presentations, examples, case studies and role plays may need to be tailored
and customized to reflect
relevant legal systems and address issues of particular interest. To facilitate the
adaptation of the
Manual and Guide to the needs of readers or course participants, both
publications are also available in
electronic format.
HUMAN RIGHTS IN THE ADMINISTRATION OF JUSTICE has been developed for use
in all kinds of courses and workshops involving the legal professions and not
necessarily only in those
organized by OHCHR or IBA. Its use is encouraged in the development of
curricula, in pre-service
training for future legal professionals and in the continuing education activities of
professional
associations.
All users are invited to comment on the material and suggest improvements.
Feedback will be
taken into account in future revisions of the Manual and Guide. Please mail your
contribution to the
following address:
Manual on Human Rights for Judges, Prosecutors and Lawyers
Office of the United Nations High Commissioner for Human Rights
Palais des Nations
1211 Geneva 10
Switzerland
OHCHR is hopeful that this material and other initiatives based on it will lead
many individuals
who work as judges, prosecutors and lawyers around the world to be agents of
change and to
contribute directly to the practical implementation of international human rights
standards.
Geneva, September 2002
xxviii Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Foreword
FOREWORD
by the
International Bar Association
During the past 50 years, the International Bar Association (IBA) has gained
recognition as the
global representative of both individual lawyers and the Bar Associations and
Law Societies that
oversee the profession. Its 180 Member Organisations cover all continents and
include the American
Bar Association, the German Federal Bar, the Japan Federation of Bar
Associations, the Law Society of
Zimbabwe and the Mexican Bar Association.
The IBA believes in the fundamental right of the world’s citizens to have disputes
heard and
determined by an independent judiciary, and for judges and lawyers to practise
freely and without
interference.
In 1995 the IBA established the Human Rights Institute (HRI) under the Honorary
Presidency
of Nelson Mandela to further this work. The Human Rights Institute welcomes
members from across
the spectrum of legal practice; indeed the vast majority of the most active
participants do not practise
human rights law in their daily lives but, through membership of the HRI,
demonstrate their
commitment to supporting the freedom of the legal profession. It is to strengthen
this commitment
that the present Manual and Facilitator’s Guide have been conceived, composed
and compiled.
In many countries even traditional legal training tends to ignore the comparative
and
international dimension, with the result that lawyers and judges often have not
been introduced to the
remarkable and comprehensive developments of statements of international
human rights norms and
the decisions and views of the international monitoring bodies and regional
courts. The basic problem
about international human rights law is not so much its applicability or
inapplicability in national
systems – the basic problem is how little is known around the world of its
provisions!
Yet members of the legal profession and the judiciary have an unstated moral
obligation to
assist in the development of a civil society based upon the rule of law, and, at a
more practical level,
lawyers and judges have a professional responsibility to maintain their
educational and practical
proficiency through regular professional programmes.
The international and regional human rights instruments and their developing
jurisprudence
reflect international law and principles and are of vital importance as aids to
interpretation, and in
helping judges to make choices between competing interests.
The Manual seeks to assist practitioners in ensuring they are familiar with human
rights
jurisprudence and statements, and their practical application. As noted by Justice
Bhagwati, the former
Chief Justice of India, international human rights norms would remain sterile
unless lawyers and judges
poured life into them, and infused them with vigour and strength so that they
may become vibrant and
meaningful for the whole of humanity and their universality a living reality.
The International Bar Association was pleased to provide practical support to the
Office of the
High Commissioner for Human Rights by jointly recruiting and financing a
Consultant to draft the
Manual and Guide and by creating an international committee of distinguished
jurists to review and
comment on the text.
Lawyers xxix
The Manual will enable judges and lawyers to acquaint themselves with, and
deepen their
knowledge of, international and regional human rights law and its practical use.
The comprehensive
Manual and accompanying Facilitator’s Guide constitute a detailed legal source
of use to lawyers,
judges and prosecutors in their everyday work and a structured training
programme which can easily be
used in all jurisdictions.
The Human Rights Institute’s objectives are to promote and protect the rule of
law and human
rights. We pursue these aims through trial observations, interventions and fact-
finding investigations
of legal systems by legal experts. Using our rich resource of experienced lawyers
worldwide, we also
offer educational help and long-term practical assistance to build or reinforce the
structures which
support the rule of law.
The publication of the present Manual and Guide will enable the Human Rights
Institute to
continue its training programme with renewed vigour. We aim to work closely
with Bar Associations
and Law Societies to introduce them to lawyers, judges and prosecutors
worldwide.
We should like to extend our sincere thanks to the Office of the High
Commissioner for
Human Rights for its unfailing support; to Anna-Lena Svensson-McCarthy for her
hard work and
professionalism in drafting the Manual and Guide; to members of the IBA’s
Review Committee for
their invaluable input; and finally to Lord Goldsmith QC, Attorney-General for the
United Kingdom
and former Co-Chair of the IBA’s Human Rights Institute, who has encouraged
the development of
this Manual from its inception.
Ramón Mullerat
Co-Chair
IBA’s Human Rights Institute
Fali Nariman
Co-Chair
IBA’s Human Rights Institute
August 2002
xxx Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Foreword
ACKNOWLEDGEMENTS
The Office of the United Nations High Commissioner for Human Rights wishes to
thank the
many individuals and organizations who provided useful comments, suggestions
and support for the
preparation of this Manual and Facilitator’s Guide. In particular, we would like to
acknowledge the
work done by Anna-Lena Svensson-McCarthy who took primary responsibility for
developing and
assembling the material.
The partnership between OHCHR and the International Bar Association (IBA) in
the
management of the project was strongly supported and encouraged by Lord
Goldsmith QC (former
Co-Chair of the IBA Human Rights Institute) and by the current Co-Chairs Ramón
Mullerat OBE
(Spain) and Fali Nariman (President, Bar Association of India). An IBA Review
Committee provided
comments and advice; the Committee was chaired by Dr. Phillip Tahmindjis
(Associate Professor,
Faculty of Law, Queensland University of Technology, Australia, and Council
Member, IBA Human
Rights Institute). Members of the Committee who submitted comments were
Justice Michael Kirby
(High Court of Australia), Finn Lynghjem (Norway), Ambassador Emilio Cardenas
(Argentina, IBA
Vice-President), Professor Christof Heyns (University of Pretoria) and Associate
Professor Carole
Peterson (University of Hong Kong). In addition, Kazuyuki Azusawa (Vice-Chair,
IBA Human Rights
Institute and Vice Chairman of the Committee on International Human Rights,
Japan Federation of
Bar Associations) provided comments.
Useful information and advice was received from the following organizations:
Adalah – The
Legal Center for Arab Minority Rights in Israel, Amnesty International, the
Commonwealth
Secretariat, the Council of Europe, Franciscans International, the General Council
of the Bar of South
Africa (Johannesburg, South Africa), the Secretariat of the Inter-American
Commission on Human
Rights and of the Inter-American Court of Human Rights, the International
Commission of Jurists, the
Law Council Secretariat (Australia), the New Zealand Human Rights Commission,
Penal Reform
International and the World Organization Against Torture. Michael Birnbaum,
Coleman Ngalo, Justice
Bernhard Schlüter, Professor Dinah Shelton, Richard Stainsby and Professor
David Weissbrodt also
provided input.
Within the United Nations, staff from the Department of Economic and Social
Affairs/Division for the Advancement of Women, the Office of the United Nations
High
Commissioner for Refugees and the United Nations Volunteers offered input, as
did several OHCHR
staff members.
The conceptualization and drafting of this package also benefited from an early
draft prepared
in 1996/97 under the supervision of Marcia V. J. Kran (Adjunct Professor, Faculty
of Law, University
of British Columbia, Canada), assisted by a number of researchers, doctoral
candidates and students.
The contributors to that draft included Justice Lucien Beaulieu, Justice P.N.
Bhagwati, Param
Cumaraswamy (Special Rapporteur on the independence of judges and lawyers),
Matar Diop, Anil
Gayan, Louis Joinet, Justice Michael Kirby, Scott Leckie, William McCarney,
Manfred Nowak, Craig
Scott, Soli Sorabjee, Jean Trépanier and Rick Wilson. Input was also provided by
the Council of
Europe, the International Association of Judges, the International Association of
Juvenile Court
Judges, the International Bar Association, the International Commission of Jurists,
the International
Training Centre of the International Labour Organization, the International
Women Judges
Foundation and the United Nations Latin American Institute for the Prevention of
Crime and the
Treatment of Offenders.
Lawyers xxxi
ABBREVIATIONS
ACHPR African Commission on Human and Peoples’ Rights
ECOSOC United Nations Economic and Social Council
ETS European Treaty Series
Eur. Comm. HR European Commission of Human Rights
Eur. Court HR European Court of Human Rights
GAOR United Nations General Assembly Official Records
I-A Court HR Inter-American Court of Human Rights
I-A Comm. HR Inter-American Commission on Human Rights
IBA International Bar Association
ICJ International Court of Justice
OAS Organization of American States
OAU Organisation of African Unity
UN United Nations
UNICEF United Nations Children’s Fund
xxxiv Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
ADDENDUM
Major Recent Developments (2002 – March 2003)
The following information should be added to the chapters indicated. Further
updates of
relevant developments will be posted on the OHCHR web site (www.ohchr.org).
Chapter 2: The Major Universal Human Rights Instruments and
the Mechanisms for Their Implementation
The International Criminal Court (pp. 49-50): The International Criminal
Court
was inaugurated on 11 March 2003 and has its seat in The Hague, the
Netherlands. As
of 10 March 2003, 89 States had ratified the Court’s Statute. For more
information
about the Court, see www.icc-cpi.int/.
The Convention on the Rights of the Child, 1989, and its two Optional
Protocols, 2000 (p. 43): In two meetings held on 10 February 2003, States
parties to
the Convention on the Rights of the Child expanded the membership of the
Committee that monitors compliance with the Convention by electing 13 experts,
five
to replace members whose terms were expiring and eight new ones, thereby
bringing
the total number of members to 18. Originally, the Committee on the Rights of
the
Child had only ten members (art. 43(2) of the Convention).
The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1984 (p. 54): On 18 December 2002, the United
Nations General Assembly adopted the Optional Protocol to the Convention
against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The
objective of this Optional Protocol “is to establish a system of regular visits
undertaken by independent international and national bodies to places where
people
are deprived of their liberty, in order to prevent torture and other cruel, inhuman
or
degrading treatment or punishment” (art. 1).
Chapter 3: The Major Regional Human Rights Instruments and
the Mechanisms for Their Implementation
The European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment, 1987 (p. 107): With the entry into
force on
1 March 2002 of Protocol No. 1 to this Convention, the Committee of Ministers of
the Council of Europe may invite any non-member State of the organization to
accede
to the Convention. No geographical limits on this power of invitation are foreseen
in
the Protocol (see www.cpt.coe.int/en/about.htm).
xxxii Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Chapter 4: Independence and Impartiality of Judges, Prosecutors and
Lawyers
International Law and the Independence of Prosecutors (p. 147): With
regard
more particularly to prosecutors in Europe, see also Recommendation
Rec(2000)19 of
the Committee of Ministers of the Council of Europe to member States on the
role of
public prosecution in the criminal justice system. This recommendation can be
found
at http://cm.coe.int/ta/rec/2000/2000r19.htm.
Chapter 8: International Legal Standards for the Protection of Persons
Deprived of Their Liberty
Personal hygiene, food, health and medical services (pp. 345-348): The
European Court of Human Rights has rendered an important judgment in a case
regarding the continued detention of a prisoner undergoing treatment for
cancer. The
Court was of the view that the national authorities had not ensured that the
applicant
concerned was given health care enabling him to avoid treatment, contrary to
article 3
of the European Convention on Human Rights. His continued detention therefore
constituted a violation of his right to dignity and also caused him suffering in
excess of
that inevitably associated with a custodial sentence and treatment for cancer
(see Eur.
Court HR, Case of Mouisel v. France, judgment of 14 November 2002, para. 48).
The case of Papon v. France concerned the detention of aman convicted when he
was in
his late eighties of aiding and abetting crimes against humanity and sentenced
to ten
years’ imprisonment by a French court. In his application to the European Court
of
Human Rights, the applicant argued that it was contrary to article 3 of the
European
Convention on Human Rights to keep aman of over 90 years of age in prison and
that
the conditions of detention in the prison where he was held were not compatible
with
extreme old age. The Court rejected the complaint as being manifestly ill-
founded (see
Eur. Court HR, Case of Papon v. France, decision on the admissibility of 7 June
2001).
Chapter 12: Some Other Key Rights: Freedom of Thought,
Conscience,
Religion, Opinion, Expression, Association and Assembly
Freedom of association and political parties (p. 614 at pp. 620-626):
With regard
to the Refah Partisi (Prosperity Party) and Others v. Turkey, an appeal was
lodged against the
judgment given by a chamber of the European Court of Human Rights on 31 July
2001. In its judgment of 13 February 2003, the Grand Chamber of the Court
concluded unanimously that article 11 of the European Convention on Human
Rights had not been violated in this case (see Eur. Court HR, Case of Refah
Partisi (The
Welfare Party) and Others v. Turkey, judgment of 13 February 2003; the
judgment can be
found on the Court’s web site: http://hudoc.echr.coe.int.
Lawyers xxxiii
Addendum
.........Chapter 1
INTERNATIONAL
HUMAN RIGHTS LAW AND
THE ROLE OF THE LEGAL
PROFESSIONS: A GENERAL
INTRODUCTION ...................
Learning Objectives
_ To ensure that participants acquire a basic working knowledge of the
origin, purpose
and scope of international human rights law;
_ To familiarize participants with the application of international human
rights law at
the domestic level and to begin to make them aware of the important role
played by the
legal professions in this respect.
Questions
_ Why did you want to join the course?
_ What is a human right?
_ Why are human rights important in general?
_ Why are human rights important in the country where you are
professionally active?
_ How do you, as judges, prosecutors and/or lawyers, see your role as
promoters and
protectors of human rights in the exercise of your professional duties?
_ What specific problems, if any, do you face with regard to the protection
of human
rights in the country/countries where you work?
Lawyers 1
1. Introduction
In recent decades, international human rights law has had an ever-growing
impact on domestic legal systems throughout the world, and thereby also on the
daily
work of domestic judges, prosecutors and lawyers. This evolving legal situation,
the
true dimensions of which could hardly have been foreseen half a century ago,
requires
each State concerned, and also the relevant legal professions, carefully to
consider ways
in which effective implementation of the State’s legal human rights obligations
can best
be secured. This may in many instances constitute a challenge to legal
practitioners,
owing to the conflicting requirements of different laws, lack of access to
information,
and the need for further training.
The objective of the present Manual is therefore to convey a basic knowledge
of, and skills in, the implementation of international human rights law to judges,
prosecutors and lawyers – legal professions without which there can be no truly
efficient protection of the rights of the individual at the domestic level. To this
end, the
present chapter will provide a general introductory survey of the basic notions of
international human rights law, whilst the remaining fifteen chapters will contain
more
detailed information and analyses of human rights standards that are of
particular
relevance to the administration of justice.
2. Origin, Meaning and Scope of
International Human Rights Law
2.1 The Charter of the United Nations and the
Universal Declaration of Human Rights
Humanity’s yearning for respect, tolerance and equality goes a long way back
in history, but the curious thing to note is that, although our societies have in
many
respects made great strides in the technological, political, social and economic
fields,
contemporary grievances remain very much the same as they were hundreds,
even
thousands of years ago.
As to the protection of the rights and freedoms of the individual at the
international level, work began in the nineteenth century to outlaw slavery and
to
improve the situation of the sick and wounded in times of war.1 At the end of the
First
World War, several treaties were concluded with the allied or newly created
States for
the purpose of providing special protection for minorities.2 At about the same
time, in
1919, the International Labour Organization (ILO) was founded for the purpose of
improving the conditions of workers. Although the initial motivation of the ILO
was
humanitarian, there were also, inter alia, political reasons for its creation, it
being feared
2 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors
and Lawyers
Chapter 1 • International Human Rights Law and the Role of the Legal Professions: A General
Introduction
1A.H. Robertson, Human Rights in the World (Manchester, Manchester University Press, 1972), pp. 15-20.
2Ibid., pp. 20-22. On the history of human rights, see resource list in Handout No. 1 to Chapter 2 of the
Manual.
that, unless the conditions of the ever-increasing number of workers were
improved,
the workers would create social unrest, even revolution, thereby also imperilling
the
peace and harmony of the world.3
Following the atrocities committed during the Second World War, the acute
need to maintain peace and justice for humankind precipitated a search for ways
of
strengthening international cooperation, including cooperation aimed both at
protecting the human person against the arbitrary exercise of State power and at
improving standards of living. The foundations of a new international legal order
based
on certain fundamental purposes and principles were thus laid in San Francisco
on 26
June 1945 with the adoption of the Charter of the United Nations. In the
Preamble to
the Charter, faith is first reaffirmed “in fundamental human rights, in the dignity
and
worth of the human person, in the equal rights of men and women and of nations
large
and small”. Secondly, the Preamble also, inter alia, expresses the determination
“to
promote social progress and better standards of life in larger freedom”. Thirdly,
one of
the four purposes of the United Nations is, according to Article 1(3) of the
Charter,
“2. To achieve international co-operation in solving international
problems of an economic, social, cultural, or humanitarian character, and
in promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex, language,
or religion”.
Other Charter provisions containing references to human rights are: Articles
13(1)(b), 55(c), 62(2), 68, and 76(c). It is of particular significance to point out
that,
according to Articles 56 and 55(c) read in conjunction, United Nations Member
States
have a legal obligation “to take joint and separate action in co-operation with the
Organization for the achievement of” “universal respect for, and observance of,
human
rights and fundamental freedoms for all without distinction as to race, sex,
language, or
religion”. This important legal duty conditions Member States’ participation
throughout the United Nations human rights programme.
With the adoption by the United Nations General Assembly of the Universal
Declaration of Human Rights on 10 December 1948, the rather terse references
to
“human rights and fundamental freedoms” in the Charter acquired an
authoritative
interpretation. The Universal Declaration recognizes civil, cultural, economic,
political
and social rights, and, although it is not a legally binding document per se, since
it was
adopted by a resolution of the General Assembly, the principles contained
therein are
now considered to be legally binding on States either as customary international
law,
general principles of law, or as fundamental principles of humanity. In its dictum
in the
case concerning the hostages in Tehran, the International Court of Justice clearly
invoked “the fundamental principles enunciated in the ... Declaration” as being
legally
binding on Iran in particular with regard to the wrongful deprivation of liberty and
the
imposition of “physical constraint in conditions of hardship”.4
Lawyers 3
Introduction
3For the history of the ILO, see the ILO web site: www.ilo.org/public/english/about/history.htm.
4See United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), Judgment, ICJ
Reports 1980, p. 42, para. 91.
The devastating experiences of the First and Second World Wars
underscored the imperative need both to protect the human person
against
the arbitrary exercise of State power and to promote social progress and
better living standards in larger freedom.
2.2 The ethical dimension of human rights
The very specificity of the concept of “human rights” is that they belong to
the individual in his or her quality as a human being, who cannot be deprived of
their
substance in any circumstances; these rights are thus intrinsic to the human
condition.
The Universal Declaration of Human Rights, the International Covenant on Civil
and
Political Rights and the International Covenant on Economic, Social and Cultural
Rights all give expression to this fundamental ethical basis in their first
preambular
paragraphs by recognizing “the inherent dignity and ... the equal and inalienable
rights
of all members of the human family”. Here, then, is an expression of the
principle of
universality of rights, including the right to equal protection before the law and
by the
law, which, as will be seen in Chapter 13, is a fundamental principle conditioning
the
entire field of international human rights law.
As to the regional level, the second preambular paragraph to the American
Convention on Human Rights also expressly recognizes “that the essential rights
of
man are not derived from one’s being a national of a certain State, but are based
upon
attributes of the human personality”. As stated by the Inter-American Court of
Human
Rights in its Advisory Opinion on Habeas Corpus in Emergency Situations, the
rights
protected by the Convention cannot, per se, be suspended even in emergency
situations, because they are “inherent to man”.5 It follows, in the view of the
Court,
that “what may only be suspended or limited” under the Convention is the “full
and
effective exercise” of the rights contained therein.6 Finally, the African Charter on
Human and Peoples’ Rights, in its fifth preambular paragraph, also recognizes
“that
fundamental human rights stem from the attributes of human beings, which
justifies
their national and international protection”.
Consequently, human rights are owed by States to all individuals within their
jurisdiction and in some situations also to groups of individuals. The principle of
universal and inalienable rights of all human beings is thus solidly anchored in
international
human rights law.
Human rights are inherent in all members of the human family.
Human rights are thus universal and inalienable rights of all
human beings.
and Lawyers
Introduction
5See I-A Court HR, Habeas Corpus in Emergency Situations (arts. 27(2), 25(1) and 7(6), Advisory Opinion
OC-8/87 of January 30, 1987,
Series A, No. 8, para. 18 at p. 37.
6Ibid., loc. cit.
Human beings cannot be deprived of the substance of their rights
(inalienability). Only the exercise of some of these rights can be
limited in certain circumstances.
The fact that human rights originate in the unique nature of the
human being means that they should be subjected to effective legal
protection at the national and international levels.
2.3 Human rights and their impact on national and
international peace, security and development
As already explained, it was the tragedies of the two World Wars that
compelled the international community to create a world organization with the
purpose
of furthering peace and justice, inter alia by encouraging the promotion and
protection
of human rights and fundamental freedoms. The all-too-evident lesson to be
drawn
from the Second World War was that, when a State pursues a deliberate policy of
denying persons within its territory their fundamental rights, not only is the
internal
security of that State in jeopardy, but in serious situations there is a spillover
effect that
imperils the peace and security of other States as well. This hard-won lesson has
been
confirmed on numerous occasions since in every part of the world. Effective
protection of human rights promotes peace and stability at the national level not
only
by allowing people to enjoy their basic rights and freedoms, but also by providing
a
basic democratic, cultural, economic, political and social framework within which
conflicts can be peacefully resolved. Effective protection of human rights is
consequently also an essential precondition for peace and justice at the
international level,
since it has inbuilt safeguards that offer the population ways of easing social
tension at the
domestic level before it reaches such proportions as to create a threat on a wider
scale.
As a reading of, in particular, Article 1 of the Charter of the United Nations
and the first preambular paragraphs of the Universal Declaration and the two
International Covenants makes clear, the drafters were well aware of the
essential fact
that effective human rights protection at the municipal level is the foundation of
justice,
peace and social and economic development throughout the world.
More recently, the link between, inter alia, the rule of law, effective human
rights protection and economic progress has been emphasized by the Secretary-
General of the United Nations in his Millennium Report, where he emphasized
that
“84. It is now widely accepted that economic success depends in
considerable measure on the quality of governance a country enjoys. Good
governance comprises the rule of law, effective State institutions,
transparency and accountability in the management of public affairs,
respect for human rights, and the participation of all citizens in the
decisions that affect their lives. While there may be debates about the most
appropriate forms they should take, there can be no disputing the
importance of these principles”.7
Lawyers 5
Introduction
7UN doc. A/54/2000, We the Peoples: the Role of the United Nations in the Twenty-First Century, Report of
the Secretary-General, para. 84.
Effective protection of human rights and fundamental freedoms is
conducive to both domestic and international peace and security.
Effective protection of human rights provides a basic democratic culture
enabling conflicts to be resolved peacefully.
Economic progress depends to a large extent on good governance and
effective protection of human rights.
2.4 The sources of law
The third preambular paragraph of the Universal Declaration of Human
Rights states that
“... it is essential, if man is not to be compelled to have recourse, as a last
resort, to rebellion against tyranny and oppression, that human rights
should be protected by the rule of law” (emphasis added).
This means that, in order to enable the human person fully to enjoy his or her
rights, these rights must be effectively protected by domestic legal
systems. The
principle of the rule of law can thus also be described as an overarching principle
in the
field of human rights protection because, where it does not exist, respect for
human
rights becomes illusory. It is interesting in this respect to note that, according to
article 3
of the Statute of the Council of Europe, “every Member State ... must accept the
principle of the rule of law”. This fundamental principle is thus legally binding on
the 43
Member States of the organization, a fact that has also influenced the case-law
of the
European Court of Human Rights.8
Consequently, judges, prosecutors and lawyers have a crucial role to fulfil in
ensuring that human rights are effectively implemented at the domestic level.
This
responsibility requires the members of these legal professions to familiarize
themselves
adequately with both national and international human rights law. Whilst their
access to
domestic legal sources should pose no major problem, the situation is more
complex at
the international level, where there are several legal sources and a case-law rich
in many
respects.
With some modification, the next section will follow the hierarchy of legal
sources as they appear in article 38 of the Statute of the International Court of
Justice.
Although one might disagree with the classification of sources in this provision, it
serves as a useful starting point. According to article 38(1) of the Statute, the
sources
are:
and Lawyers
Introduction
8Eur. Court HR, Golder case, Judgment of 21 February 1975, Series A, No. 18, para. 34 at p. 17. The Court
stated that one “reason
why the signatory Governments decided to ‘take the first steps for the collective enforcement of certain of
the Rights stated in the
Universal Declaration’ was their profound belief in the rule of law”; it therefore seemed “both natural and in
conformity with the
principle of good faith ... to bear in mind this widely proclaimed consideration when interpreting the terms
of” article 6(1) of the
European Convention “according to their context and in the light of the object and purpose of the
Convention”. Referring
moreover to the references to the rule of law contained in the Statute of the Council of Europe, the Court
concluded that “in civil
matters one can scarcely conceive of the rule of law without there being a possibility of having access to the
courts”. The Council
of Europe had 43 Member States as of 22 April 2002.
_ “international conventions”;
_ “international custom, as evidence of a general practice accepted as law”;
_ “general principles of law recognized by” the community of nations;9
_ “judicial decisions and the teachings of the most highly qualified publicists ...
as
subsidiary means for the determination of rules of law”.
Without seeking to be exhaustive, the next section will set forth the essential
characteristics of the main sources of international human rights law. However, it
should be noted at the outset that in international human rights law, judicial
decisions,
and also quasi-judicial decisions and general comments adopted by monitoring
organs,
take on special relevance in understanding the extent of the legal obligations of
States.
Human rights must be effectively protected by domestic legal systems.
Judges, prosecutors and lawyers have a crucial role to fulfil in ensuring
that human rights are effectively protected at the domestic level.
The principal sources of international law are international
conventions, international customary law, and general
principles of law.
2.4.1 International treaties
In the human rights field, the most important tool for judges, prosecutors and
lawyers to consult, apart from existing domestic law, is no doubt the treaty
obligations
incumbent on the State within whose jurisdiction they are working. A “treaty” is
generally a legally binding, written agreement concluded between States,10 but
can also be an
agreement between, for instance, the United Nations and a State for specific
purposes.
Treaties may go by different names, such as convention, covenant, protocol, or
pact, but the
legal effects thereof are the same. At the international level, a State establishes
its
consent to be bound by a treaty principally through ratification, acceptance,
approval, or
accession;11 only exceptionally is the consent to be bound expressed by
signature.12
However, the function of signature of a treaty is often that of authenticating the
text,
and it creates an obligation on the State concerned “to refrain from acts which
would
defeat the object and purpose” of the treaty, at least until the moment it has
“made its
intention clear not to become a party” thereto.13
Once a treaty has entered into force and is binding upon the States parties,
these must perform the treaty obligations “in good faith” (pacta sunt
servanda).14 This
implies, inter alia, that a State cannot avoid responsibility under international law
by
invoking the provisions of its internal laws to justify its failure to perform its
international legal obligations. Moreover, in international human rights law, State
Lawyers 7
Introduction
9Article 38(1)(c) archaically refers to “civilized nations”.
10Article 2(1)(a) of the Vienna Convention on the Law of Treaties.
11Ibid., article 2(1)(b).
12Ibid., article 12.
13Ibid., article 18(a).
14Ibid., article 26.
responsibility is strict in that States are responsible for violations of their treaty
obligations even where they were not intentional.
Human rights treaties are law-making treaties of an objective nature in that
they create general norms that are the same for all States parties. These norms
have to
be applied by a State party irrespective of the state of implementation by other
States
parties. The traditional principle of reciprocity does not, in other words, apply to
human
rights treaties.15
The fact that human rights treaties have been concluded for the purpose of
ensuring effective protection of the rights of the individual takes on particular
importance in the course of the interpretative process. In explaining the meaning
of the
provisions of a human rights treaty, it is therefore essential for judges to adopt a
teleological and holistic interpretative approach by searching for an
interpretation
that respects the rights and interests of the individual and is also logical in the
context of
the treaty as a whole.
Examples of law-making treaties in the human rights field are the two
International Covenants on Civil and Political and on Economic, Social and
Cultural
Rights, which will be considered in further detail below. Suffice it to mention in
this
regard that the Committees created under the terms of each treaty to monitor
its
implementation have by now adopted many views and comments which provide
valuable interpretative guidance to both national and international lawyers.
Obligations incurred by States under international treaties must be
performed in good faith.
In international human rights law State responsibility is strict in that
States are responsible for violations of their treaty obligations even where
they were not intentional.
A human rights treaty must be interpreted on the basis of a teleological
and holistic approach by searching for an interpretation that respects the
rights and interests of the individual and is also logical in the context of
the treaty as a whole.
2.4.2 International customary law
To follow the hierarchy of legal sources in article 38(1) of the Statute of the
International Court of Justice, judges can in the second place apply “international
custom, as evidence of a general practice accepted as law”. International
customary
legal obligations binding upon States are thus created when there is evidence of
both
_ acts amounting to a “settled practice” of States; and
_ a “belief that this practice is rendered obligatory by the existence of a rule of
law
requiring it” (opinio juris).16
and Lawyers
Introduction
15Eur. Comm. HR, Application No. 788/60, Austria v. Italy, decision of 11 January 1961 on the admissibility,
4 Yearbook of the European
Convention on Human Rights, p. 140.
16North Sea Continental Shelf cases, Judgment, ICJ Reports 1969, p. 44, para. 77.
The judge will thus have to assess the existence of one objective element
consisting of the general practice, and one subjective element, namely, that
there is a
belief among States as to the legally binding nature of this practice.17
With regard to the question of practice, it follows from the ruling of the
International Court of Justice in the North Sea Continental Shelf cases that, at
least with
regard to “the formation of a new rule of customary international law on the
basis of
what was originally a purely conventional rule”, the passage of time can be
relatively
short, although
“an indispensable requirement would be that within the period in question,
short though it might be, State practice, including that of States whose
interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked; – and should
moreover have occurred in such a way as to show a general recognition
that a rule of law or legal obligation is involved”.18
In the subsequent case of Nicaragua v. the United States of America, the
International Court of Justice appears however to have somewhat softened this
rather
strict interpretation of the objective element of State practice, whilst at the same
time
placing a correspondingly greater emphasis on the opinio juris in the creation of
custom.
In its reasoning, which related to the use of force, the Court held, in particular:
“186. It is not to be expected that in the practice of States the application of
the rules in question should have been perfect, in the sense that States
should have refrained, with complete consistency, from the use of force or
from intervention in each other’s internal affairs. The Court does not
consider that, for a rule to be established as customary, the corresponding
practice must be in absolutely rigorous conformity with the rule. In order
to deduce the existence of customary rules, the Court deems it sufficient
that the conduct of States should, in general, be consistent with such rules,
and that instances of State conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indications of
the recognition of a new rule. If a State acts in a way prima facie
incompatible with a recognized rule, but defends its conduct by appealing
to exceptions or justifications contained within the rule itself, then whether
or not the State’s conduct is in fact justifiable on that basis, the significance
of that attitude is to confirm rather than to weaken the rule”.19
The question now arises as to what legal principles for the protection of the
human person might have been considered to form part of customary
international law
by the International Court of Justice.
In its Advisory Opinion of 1951 on Reservations to the Convention on Genocide,
the
Court importantly held that “the principles underlying the Convention are
principles
which are recognized ... as binding on States, even without any conventional
obligation”.20 Furthermore, it followed from the Preamble to the Convention that
it
Lawyers 9
Introduction
17Ibid., loc. cit.
18Ibid., p. 43, para. 74.
19Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America),
Merits, Judgment, ICJ Reports 1986,
p. 98, para. 186.
20Reservations to the Convention on Genocide, Advisory Opinion, ICJ Reports 1951, p. 23.
was of “universal character” both with regard to “the condemnation of genocide
and ...
the co-operation required ‘in order to liberate mankind from such an odious
scourge’”.21 Finally, the Court noted that the Convention had been approved by a
resolution which was unanimously adopted by the States.22 It is thus beyond
doubt that
in 1951 the crime of genocide was already part of customary international law,
applicable to
all States.
Later, in the Barcelona Traction case, the International Court of Justice
significantly made “an essential distinction” between “the obligations of a State
towards the international community as a whole, and those arising vis-à-vis
another
State in the field of diplomatic protection”.23 It added that by “their very nature
the
former are the concern of all States”, and, in “view of the importance of the
rights
involved, all States can be held to have a legal interest in their protection; they
are
obligations erga omnes”.24 In the view of the Court, such “obligations derive, for
example, in contemporary international law, from the outlawing of acts of
aggression,
and of genocide, as also from the principles and rules concerning the basic rights
of the
human person, including protection from slavery and racial discrimination”.25 It
added
that whilst some “of the corresponding rights of protection have entered into the
body
of general international law ... ; others are conferred by international instruments
of a
universal or quasi-universal character”.26
Finally, and as already noted above, in its dictum in the hostages in Tehran case,
the Court stated that:
“Wrongfully to deprive human beings of their freedom and to subject
them to physical constraint in conditions of hardship is in itself manifestly
incompatible with the principles of the Charter of the United Nations, as
well as with the fundamental principles enunciated in the Universal
Declaration of Human Rights”.27
It is thus beyond doubt that basic human rights obligations form part of
customary international law. Whilst the International Court of Justice has
expressly
mentioned the crimes of genocide and aggression, as well as the prohibition of
racial
discrimination, slavery, arbitrary detention and physical hardship as forming part
of a
universally binding corpus of law, it has not limited the scope of the law to these
elements.
_ General Assembly resolutions: It may not be an easy task to identify
international
custom, but resolutions adopted by the United Nations General Assembly can in
certain circumstances be regarded as having legal value, albeit not legally
binding per
se. This is, for instance, the case with the Universal Declaration of Human Rights.
Thus, although not a source of law in the strict sense, they can provide evidence
of
customary law. However, this will to a large extent depend on their contents,
such as
and Lawyers
Introduction
21Ibid., loc. cit.
22Ibid.
23Barcelona Traction, Light and Power Company, Limited, Judgment, ICJ Reports 1970, p. 32, para. 33.
24Ibid., loc. cit.
25Ibid., p. 32, para. 34.
26Ibid., loc. cit.
27ICJ Reports 1980, p. 42, para. 91.
the degree of precision of the norms and undertakings defined therein, and the
means foreseen for the
control of their application; it will also depend on the number of countries having
voted in favour
thereof, and the circumstances of their adoption.28 A particularly relevant
question in this
respect would be whether the resolution concerned has been adopted in
isolation or whether it
forms part of a series of resolutions on the same subject with a consistent and
universal content.
_ Peremptory norms (jus cogens): It should finally be noted that some legal
norms,
such as the prohibition of slavery, may be considered to be so fundamental that
they
are called peremptory norms of international law. According to article 53 of the
Vienna
Convention on the Law of Treaties, a treaty is simply “void if, at the time of its
conclusion, it conflicts with a peremptory norm of international law”. According
to
the same article, such a norm is described as “a norm from which no derogation
is
permitted and which can be modified only by a subsequent norm of general
international law having the same character”. However, whenever the notion of
peremptory norm is being discussed, disputes arise as to its exact contents, and
consequently it will not be further dealt with in this Manual.
2.4.3 General principles of law recognized by the community
of nations
This third source of law cited by the Statute of the International Court of
Justice helps ensure that, in cases where international treaties and customary
law might
provide an insufficient basis for the Court to take a decision, it will be able to
draw on
other resources.
A general principle of law, as a source of international human rights law, is a
legal proposition so fundamental that it can be found in all major legal systems
throughout the world. If there is evidence that, in their domestic law, States
adhere to a
particular legal principle which provides for a human right or which is essential to
the
protection thereof, then this illustrates the existence of a legally binding
principle under
international human rights law. Judges and lawyers can thus look to other legal
systems
to determine whether a particular human rights principle is so often accepted
that it can
be considered to have become a general principle of international law. Domestic
law
analogies have thus, for instance, been used in the field of principles governing
the
judicial process, such as the question of evidence.29
2.4.4 Subsidiary means for the determination of rules of law
As subsidiary means for the determination of rules of law, article 38 of the
Statute mentions “judicial decisions and the teachings of the most highly
qualified
publicists”. As previously mentioned, in the human rights field, judicial decisions
are
particularly important for a full understanding of the law, and the wealth of
international case-law that now exists in this field must be regarded as
authoritative
evidence of the state of the law. However, neither the International Court of
Justice nor
Lawyers 11
Introduction
28For some of these elements, see e.g. Les résolutions dans la formation du droit international du
développement, Colloque des 20 et 21
novembre 1970, L’Institut universitaire de hautes études internationales, Genève, 1971 (Études et travaux,
No. 13), pp. 9, 30-31
(intervention by Professor Virally).
29Ian Brownlie, Principles of Public International Law (Oxford, Clarendon Press, 1979), 3rd edn., 1979, p. 18.
the international monitoring organs in the human rights field are obliged to
follow
previous judicial decisions.30 Although this is usually done, it is particularly
important
for the monitoring organs in the human rights field to retain the flexibility
required to
adjust earlier decisions to ever-changing social needs, which, at the international
level,
cannot easily be met through legislation.31 Suffice it to add in this context that
the
reference to “judicial decisions” can also mean judicial decisions taken by
domestic
courts, and that the higher the court, the greater weight the decision will have.
However, when international monitoring organs interpret human rights law, they
are
likely to do so independently of domestic laws.
As to “the teachings of the most highly qualified publicists”, it must be
remembered that article 38 was drafted at a time when international
jurisprudence on
human rights law was non-existent. Whilst the interpretation and application of
this law
must principally be based on the legal texts and relevant case-law, writings of
“the most
highly qualified publicists” can of course in some situations contribute to an
improved
understanding of the law and its practical implementation. Yet it is advisable to
exercise
considerable care before relying on legal articles and principles and comments
adopted
by private bodies outside the framework of the officially established treaty
organs, since
they may not in all respects correctly reflect the status of the law to be
interpreted and
applied.
2.5 International human rights law and international
humanitarian law: common concerns and basic
differences
Although this Manual is aimed at conveying knowledge and skills in human
rights law, rather than in international humanitarian law, it is important to say a
few
words about the relationship between these two closely linked fields of law.
Whilst both human rights law and international humanitarian law are aimed at
protecting the individual, international human rights law provides non-
discriminatory
treatment to everybody at all times, whether in peacetime or in times
of war or
other upheaval. International humanitarian law, on the other hand, is aimed at
ensuring a minimum of protection to victims of armed conflicts, such as the sick,
injured, shipwrecked and prisoners of war, by outlawing excessive human
suffering
and material destruction in the light of military necessity.32 Although the
1949
Geneva Conventions and the two Protocols Additional thereto adopted in 1977
guarantee certain fundamental rights to the individual in the specifically defined
situations of international and internal armed conflicts, neither the personal,
temporal
nor material fields of applicability of international humanitarian law are as wide
as
and Lawyers
Introduction
30As to the International Court of Justice, see article 59 of the Statute.
31See e.g. the case in which the European Commission of Human Rights reversed its own earlier decision
according to which
a legal person, such as a church, could not bring a case under article 9(1) of the European Convention on
Human Rights claiming
a violation of “the right to freedom of thought, conscience and religion”, Eur. Comm. HR, Application No.
7805/77, X. and Church
of Scientology v. Sweden, decision of 5 May 1979 on the admissibility of the application, 16 DR, p. 70.
32Seguridad del Estado, Derecho Humanitario y Derechos Humanos, Informe Final, San José, Costa Rica,
Comité Internacional de la
Cruz Roja/Instituto Interamericano de Derechos Humanos, 1984, p. 7.
those afforded by international human rights law.33 In that sense, humanitarian
law is
also less egalitarian in nature, although the principle of non-discrimination is
guaranteed with regard to the enjoyment of the rights afforded by this law.34
What it is of primordial importance to stress at this stage is that, in
international and non-international armed conflicts, international human rights
law and
humanitarian law will apply simultaneously. As to the modifications to the
implementation of human rights guarantees that might be authorized in what is
generally called public emergencies threatening the life of the nation, these will
be briefly referred
to in section 2.8 below and in more detail in Chapter 16.
International human rights law is applicable at all times, that is, both in
times of peace and in times of turmoil, including armed conflicts, whether
of an internal or international character.
This means that there will be situations when international human rights
law and international humanitarian law will be applicable
simultaneously.
2.6 Reservations and interpretative declarations to
international human rights treaties
In assessing the exact extent of a given State’s legal obligations under a human
rights treaty, it is necessary to ascertain whether the State has made a
reservation, or,
possibly, an interpretative declaration at the time of ratification or accession.
The major
human rights treaties dealt with in this Manual allow for reservations to be made,
although they have somewhat different ways of regulating the subject. In
deciding
whether a State party has actually made a true reservation, rather than a mere
declaration as to its own understanding of the interpretation of a provision or a
statement of policy, the Human Rights Committee set up to monitor the
implementation of the International Covenant on Civil and Political Rights has
stated,
in its General Comment No. 24, that it will have regard “to the intention of the
State,
rather than the form of the instrument”.35 Whilst this Covenant contains no
specific
article regulating the question of reservations, the Human Rights Committee has
stated
that the “absence of a prohibition on reservations does not mean that any
reservation is
permitted”, but that the matter “is governed by international law”.36 Basing itself
on
article 19(3) of the Vienna Convention on the Law of Treaties, the Committee
stated
Lawyers 13
Introduction
33J. Patrnogic and B. Jakovljevic, International Humanitarian Law in the Contemporary World, Sanremo, Italy,
International Institute
of Humanitarian Law (Collection of Publications 10), 1991, p. 28.
34See e.g. article 3 common to the Four Geneva Conventions of 12 August 1949; article 75 of Protocol
Additional to the
Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed
Conflicts (Protocol I);
and article 2(1) of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims
of Non-International Armed Conflicts (Protocol II).
35See General Comment No. 24, in UN doc. HRI/GEN/1/Rev.5, Compilation of General Comments and
General Recommendations
Adopted by Human Rights Treaty Bodies (hereinafter referred to as United Nations Compilation of General
Comments), p. 150, para. 3;
emphasis added.
36Ibid., p. 151, para. 6.
that “the matter of interpretation and acceptability of reservations” is governed
by the
“object and purpose test”.37 This means, for instance, that reservations “must be
specific and transparent, so that the Committee, those under the jurisdiction of
the
reserving State and other States parties may be clear as to what obligations of
human
rights compliance have or have not been undertaken”; similarly a resolution
must “not
be general, but must refer to a particular provision of the Covenant and indicate
in
precise terms its scope in relation thereto”.38
The American Convention on Human Rights expressly stipulates in its article
75, that it “shall be subject to reservations only in conformity with the provisions
of the
Vienna Convention on the Law of Treaties”. In its Advisory Opinion on The Effect
of
Reservations, the Inter-American Court of Human Rights stated that article 75
“makes
sense” only if understood as enabling “States to make whatever reservations
they deem
appropriate”, provided that they “are not incompatible with the object and
purpose of
the treaty”.39 In its Advisory Opinion on Restrictions to the Death Penalty it
further noted
with regard to the rights that cannot be suspended in any circumstances under
article
27(2) of the Convention that it “would follow therefrom that a reservation which
was
designed to enable a State to suspend any of the non-derogable fundamental
rights
must be deemed to be incompatible with the object and purpose of the
Convention
and, consequently, not permitted by it”.40 The Court accepted, however, that the
“situation would be different if the reservation sought merely to restrict certain
aspects
of a non-derogable right without depriving the right as a whole of its basic
purpose”.41
Like the International Covenant on Civil and Political Rights, the African
Charter on Human and Peoples’ Rights is silent on the question of reservations.
However, article 64 of the European Convention on Human Rights expressly
outlaws
reservations of “a general character”, whilst permitting reservations “in respect
of any
particular provision of the Convention to the extent that any law” in force in the
territory of the State at the time of signature or ratification “is not in conformity
with
the provision” concerned.
In interpreting and applying international treaties, domestic judges,
prosecutors and lawyers may thus also have to consider the relevant State’s
legal
obligations in the light of reservations or interpretative declarations.
The scope of a State’s legal obligations under an international human
rights treaty may have to be considered in the light of any existing
reservations or interpretative declarations.
and Lawyers
Introduction
37Ibid., loc. cit.
38Ibid., p. 155, para. 19.
39I-A Court HR, The Effect of Reservations on the Entry Into Force of the American Convention on Human
Rights (Arts. 74 and 75),
Advisory Opinion OC-2/82 of September 24, 1982, Series A, No.2, p. 18, para. 35.
40I-A Court HR, Restrictions to the Death Penalty (Arts. 4(2) and 4(4) American Convention on Human
Rights), Advisory Opinion
OC-3/83 of September 8, 1983, Series A, No. 3, p. 83, para. 61.
41Ibid., at p. 84.
Under the International Covenant on Civil and Political Rights and
the American Convention on Human Rights, reservations must be
compatible with the object and purpose of the treaty.
The European Convention on Human Rights forbids reservations of a
general character. Reservations must relate to a specific provision of the
Convention.
2.7 Limitations on the exercise of rights
The exercise – albeit not the substance per se – of certain rights, such as the
right to freedom of expression, the right to freedom of association and assembly,
the
right to freedom of movement and the right to respect for one’s private and
family life
and correspondence, is generally accompanied by certain limitations that can be
imposed, for instance, in order to protect the rights and freedoms of others,
national
security, and public health or morals.42 These limitations are the result of
carefully
weighed interests. What they show is the balance struck between, on the one
hand,
individuals’ interest in maximizing the enjoyment of the right that belongs to
them,
and, on the other hand, the interest of society in general, that is, the general
interest, in
imposing certain restrictions on the exercise of this right, provided that they are
taken
in accordance with the law and are necessary in a democratic society for
certain
specific legitimate purposes. In interpreting and applying these limitations in
any
given case, it will therefore be necessary to make a careful examination of the
proportionality of the restrictive measure or measures concerned both
in general
and as applied in the individual case. Chapter 12 of this Manual provides
numerous
examples of how these limitations have been applied in specific cases.
Limitations on the exercise of human rights are the result of a careful
balance between the individual’s interest and the general interest, and
must, in order to be lawful:
_ be defined by law;
_ be imposed for one or more specific legitimate purposes;
_ be necessary for one or more of these purposes in a democratic society
(proportionality).
In order to be necessary the limitation, both in general and as applied in
the individual case, must respond to a clearly established social need. It is
not sufficient that the limitation is desirable or simply does not harm the
functioning of the democratic constitutional order.
Lawyers 15
Introduction
42See e.g. articles 12(3), 13, 18(3), 19(3), 21, 22(2) of the International Covenant on Civil and Political
Rights; articles 11 and
12(2) of the African Charter on Human and Peoples’ Rights; articles 11(2), 12(3), 13(2), 15 and 16(2) of the
American Convention
on Human Rights; and articles 8(2)-11(2) of the European Convention on Human Rights.
2.8 Derogations from international legal obligations
In interpreting and applying the terms of the three main general human rights
treaties in particularly severe crisis situations when the life of the nation is
imperilled, domestic
judges, prosecutors and lawyers will also have to consider the possibility that the
State
concerned has modified the extent of its international legal obligations by
resorting to
temporary derogations. The question of the administration of criminal justice
during
states of exception will be dealt with in Chapter 16, and it will therefore suffice in
this
context to point out that the International Covenant on Civil and Political Rights
(art.
4), the American Convention on Human Rights (art. 27) and the European
Convention
on Human Rights (art. 15) all provide for the possibility for the States parties to
resort
to derogations in particularly serious emergency situations. However, the African
Charter on Human and Peoples’ Rights has no corresponding emergency
provision,
and the absence thereof is seen by the African Commission on Human and
Peoples’
Rights “as an expression of the principle that the restriction of human rights is
not a
solution to national difficulties”, and that “the legitimate exercise of human
rights does
not pose dangers to a democratic State governed by the rule of law”.43
In the treaties where it exists, the right to derogate is subjected to strict
formal and substantive requirements, and was never intended to provide
Governments with unlimited powers to avoid their treaty obligations. In
particular, a
qualified principle of proportionality applies in that, according to all the
aforementioned treaties, the limitations resorted to must be “strictly required by
the
exigencies of the situation”. It is noteworthy, furthermore, that some rights, such
as the
right to life and the right to freedom from torture, may not in any circumstances
be
derogated from, and that the list of non-derogable rights found in the second
paragraphs of the aforesaid articles is not exhaustive. In other words, one cannot
argue a
contrario that, because a right is not expressly listed as non-derogable, the
States parties
can proceed to extraordinary limitations on its enjoyment.
Since the derogation articles provide for extraordinary limitations on the
exercise of human rights, judges, both national and international, have to be
conscious
of their obligation to interpret these articles by construing them strictly so that
individuals’ rights are not sapped of their substance. By at all times maximizing
the
enjoyment of human rights, States are more likely than not to overcome their
crisis
situations in a positive, constructive and sustainable manner.
Under the International Covenant on Civil and Political Rights and the
American and European Conventions on Human Rights, States parties
have the right in certain particularly difficult situations to derogate from
some of their legal obligations.
The right to derogate is subjected to strict formal and substantive legal
requirements.
and Lawyers
Introduction
43See undated decision: ACHPR, Cases of Amnesty International, Comité Loosli Bachelard, Lawyers
Committee for Human Rights,
Association of Members of the Episcopal Conference of East Africa v. Sudan, No. 48/90, 50/91, 52/91 and
89/93, para. 79; the text used is
that found at the following web site: http://www1.umn.edu/humanrts/africa/comcases/48-90_50-91_52-
91_89-93.html.
Some fundamental rights may never in any circumstances be derogated
from.
The right to derogate must be construed so as not to sap the individual
rights of their substance.
Derogations are not permitted under the African Charter on Human
and Peoples’ Rights.
2.9 International State responsibility for human rights
violations
Under international law, States will incur responsibility for not complying
with their legal obligations to respect and ensure, that is, to guarantee, the
effective
enjoyment of the human rights recognized either in a treaty binding on the State
concerned or in any other source of law. As explained by the Inter-American
Court of
Human Rights in the Velásquez case, an “impairment of those rights which can
be
attributed under the rules of international law to the action or omission of any
public
authority constitutes an act imputable to the State, which assumes responsibility
in the
terms provided by” the legal source concerned.44 Whilst the Court was in this
Judgment
explaining the meaning of article 1(1) of the American Convention on Human
Rights, it
indeed merely stated a general rule of law applicable to international human
rights law
as a whole.
Agents for whom a State is responsible include such groups and individuals as
ministerial civil servants, judges, police officers, prison officials, customs officials,
teachers, government-controlled business and other similar groups. This means
that
States are under an obligation to prevent, investigate, punish, and, whenever
possible, restore rights that have been violated and/or to provide
compensation.45
International human rights law also sometimes has an important third-party
effect in that States may be responsible for not having taken reasonable action
to
prevent private individuals or groups from carrying out acts that violate
human
rights, or to provide adequate protection against such violations under
domestic
law.46 As held by the European Court of Human Rights with regard to the right to
respect for one’s private and family life in article 8 of the European Convention
on
Human Rights, for instance, this provision
Lawyers 17
Introduction
44I-A Court HR, Velásquez Rodríguez case, Judgment of July 29, 1988, Series C, No. 4, p. 151, para. 164.
45See e.g. ibid., p. 152, para. 166. As to obligations to provide effective protection of the right to life under
article 6 of the
International Covenant on Civil and Political Rights, see e.g. General Comment No. 6, in United Nations
Compilation of General
Comments, pp. 114-116.
46See as to the American Convention on Human Rights, I-A Court HR, Velásquez Rodríguez Case, Judgment
of July 29, 1988,
Series C, No. 4, pp. 155-156, paras. 176-177; and as to the International Covenant on Civil and Political
Rights, UN doc. GAOR,
A/47/40, Report HRC, p. 201, para. 2. At the European level, see e.g. Eur. Court HR, Case of A. v. the United
Kingdom,Judgment of
23 September 1998, Reports 1998-VI, at p. 2692 et seq.
“is essentially that of protecting the individual against arbitrary interference
by the public authorities, it does not merely compel the State to abstain
from such interference: in addition to this primarily negative undertaking,
there may be positive obligations inherent in an effective respect for
private or family life (...). These obligations may involve the adoption of
measures designed to secure respect for private life even in the sphere of
the relations of individuals between themselves.”47
The States parties to the European Convention will thus have to provide
“practical and effective protection” in their domestic law “where fundamental
values
and essential aspects of private life are at stake”, such as, for instance, in order
to
protect persons against sexual abuse,48 or in cases of corporal punishment by
family
members that constitutes a violation of article 3 of the Convention.49
With regard to the duty to secure for everyone within its jurisdiction the right
to life, the European Court has held that it “involves a primary duty” to put “in
place
effective criminal-law provisions to deter the commission of offences against the
person backed up by law-enforcement machinery for the prevention, suppression
and
punishment of such provisions”, and, further, that this duty
“also extends in appropriate circumstances to a positive obligation on the
authorities to take preventive operational measures to protect an individual
or individuals whose life is at risk from the criminal acts of another
individual(...)”.50
These rulings are significant in that they extend the scope of States’
international legal obligations beyond the strict public sphere into the field of
private
life, thereby allowing for a more adequate and effective protection against
various
forms of human rights violations, such as physical and mental abuse of children,
women and the mentally handicapped.
*****
A State will however only incur international responsibility for a human rights
violation if it has failed to provide the alleged victim with an adequate and
effective
remedy through the workings of its own courts or administrative authorities. The
requirement at the international level that all effective domestic remedies must
have been
exhausted before an alleged victim’s complaints can be considered by an
international
monitoring body of a judicial or quasi-judicial character has been introduced
precisely
in order to allow the State itself to remedy the wrongs committed. This also
means that
the establishment of the various international machineries for the protection of
the
human person is in fact “subsidiary” to the available domestic systems for
safeguarding
the individual, since they “become involved only through contentious
proceedings and
once all domestic remedies have been exhausted”.51
and Lawyers
Introduction
47Eur. Court HR, Case of X. and Y. v. the Netherlands, Judgment of 26 September 1985, Series A, No. 91, p.
11, para. 23.
48Ibid., p. 14, para. 30 and p. 13, para. 27.
49Eur. Court HR, Case of A. v. the United Kingdom, Judgment of 23 September 1998, Reports 1998-VI,
concerning the responsibility
of the United Kingdom for beating of child by stepfather.
50Eur. Court HR, Case of Mahmut Kaya v. Turkey, Judgment of 28 March 2000, para. 85. The text used is
that found on the Court’s
web site: http://hudoc.echr.coe.int/hudoc/
51Statement with regard to the European Convention on Human Rights, Eur. Court HR, Case of Handyside,
Judgment of 7
December 1976, Series A, Vol. 24, p. 22, para. 48.
States’ responsibility to provide protection and redress for victims of abuses
of power will be dealt with in some detail in Chapter 15 of this Manual.
Whenever bound by international human rights law, States have a
strict legal obligation to guarantee the effective protection of human
rights to all persons within their jurisdiction.
States’ legal duty to protect human rights implies an obligation to
prevent, investigate and punish human rights violations, as well
as to restore rights whenever possible or provide compensation.
States may also have a legal duty not only to provide protection against
human rights violations committed by public authorities, but also to
ensure the existence of adequate protection in their domestic law against
human rights violations committed between private individuals.
3. Business Corporations and
Human Rights
In recent years there has been wide discussion of the question whether, and to
what extent, entities other than States, such as business corporations, could and
should
be held legally responsible for not complying with rules of international human
rights
law in the exercise of their various activities. Whilst it is clear from the preceding
sub-section that States themselves may have a duty to ensure that their
domestic law
also offers adequate remedies against serious human rights violations that may
be
committed by private individuals, this reasoning would appear to be equally
applicable
to the activities of business corporations. However, this is not, of course, the
same as
saying that these corporations are themselves incurring international legal
responsibility
for any wrongful acts.
The discussion at the international level on the legal responsibility of business
corporations to guarantee human rights offers a wealth of ideas concerning, inter
alia,
standards to protect workers from abuses or the environment from unnecessary
damage and destruction. However, the development of the law in this important
area is
still very much in its infancy, and the arguments put forward at this stage belong
primarily to the field of lex ferenda.
Since the aim of this Manual is to explain the legal duties of States themselves
under international law, no further consideration will be devoted to the possible
legal
responsibilities of business corporations to protect human rights. However,
judges,
prosecutors and lawyers may well be confronted with these problems in the
exercise of
their professional duties at the domestic level. In addition to any duties business
corporations may have to protect individual rights and the environment under
domestic law, it might therefore be useful for members of the legal professions
to be
aware of the fact that discussions are taking place at the international level and
that
Lawyers 19
Introduction
there is, as a minimum, an ethical duty under international law for corporations
to run
their businesses in such a manner as to respect basic human rights.52
States may have an international legal obligation to ensure adequate
protection in their domestic law against human rights violations
committed by business corporations.
Business corporations may themselves have legal obligations in the field
of
human rights derived from domestic law.
At the international level business corporations are considered to have, as
a minimum, an ethical responsibility to respect fundamental human
rights.
4. International Human Rights Law
at the Domestic Level
4.1 Incorporating international law into domestic
legal systems
As previously noted, and as provided in article 27 of the Vienna Convention
on the Law of Treaties, a State “may not invoke the provisions of its internal law
as
justification for its failure to perform a treaty”. On the other hand, States are free
to
choose their own modalities for effectively implementing their international legal
obligations, and for bringing national law into compliance with these obligations.
Since
domestic legal systems differ considerably in this respect, albeit also having
some
similarities, it will be for each domestic judge, prosecutor and lawyer concerned
to keep
himself or herself informed as to the manner of incorporation of the State’s
international legal obligations into national law. Below, a mere general account
will be
given of the various ways in which a State can modify its municipal law so as to
bring it
into conformity with its international legal obligations.
_ First, according to the monist theory, of which there are in fact several
divergent
versions,53 international law and domestic law can in general terms be described
as
forming one legal system. This means that once a State has ratified a treaty for
the
protection of the human person, for instance, the terms of that treaty
automatically
become binding rules of domestic law.
and Lawyers
Introduction
52Suggested reading on the question of business corporations and human rights: Michael Addo, Human
Rights Standards and the
Responsibility of Transnational Corporations (The Hague, Kluwer Law International, 1999); and Alan Dignam
and David Allen,
Company Law and the Human Rights Act 1998 (London, Butterworth, 2000).
53See Ian Brownlie, Principles of Public International Law (Oxford, Clarendon Press, 3rd edn., 1979), p. 34.
_ Secondly, according to the dualist theory, municipal law and international law
are
different legal systems. Municipal law is supreme, and for municipal judges to be
competent to apply international treaty rules, for instance, these have to be
specifically
adopted or transposed into domestic law. It follows that a human rights treaty
ratified by
the State concerned cannot in principle be invoked by local judges unless the
treaty
is incorporated into municipal law, a process which normally requires an Act of
Parliament.
However, these theories have been criticized for not reflecting the conduct of
national and international organs, and they are gradually losing ground. For legal
practitioners it is therefore more important to emphasize practice rather than
theory.54
Changes in the role and in domestic perception and understanding of
international law
in general, and of international human rights law in particular, have led to an
increased
use of such law in domestic courts. One of the purposes of this Manual is
therefore to
prepare judges, prosecutors and lawyers to adapt and contribute to these
fundamental
changes. The following is a list of some of the principal means through which
international human rights norms can be contained in municipal law or otherwise
applied by domestic courts and other competent authorities:
_ Constitutions: Many constitutions actually contain numerous human rights
provisions, which may follow the text of, for instance, the Universal Declaration
of
Human Rights, the International Covenant on Civil and Political Rights or the
regional human rights conventions. The use of such common language enables
judges, prosecutors and lawyers to draw upon the jurisprudence of, in particular,
international courts and other monitoring organs in interpreting the meaning of
their own constitutional or other provisions;
_ Other national legislation: Many States adopt specific legislation either to
clarify
or elaborate on their constitutional provisions, or in order to adapt their domestic
laws to their international legal obligations. When transforming international law
into municipal law, the same legal terms are often used, thus allowing the legal
professions to draw inspiration from international jurisprudence or the
jurisprudence of other States;
_ Incorporation: It is also common for States to incorporate international
human
rights treaties into their domestic law by enacting a national law. This is for
instance
the case with the European Convention on Human Rights in the United Kingdom,
where that Convention was incorporated into British law by virtue of the Human
Rights Act 1998, which entered into force on 2 October 2000;
_ Automatic applicability: In some States treaties take precedence over
domestic
law and are thus automatically applicable in domestic courts as soon as they
have
been ratified by the State concerned;
_ Interpretation of common law: In interpreting common-law principles,
judges
may be governed by international human rights law and international
jurisprudence
interpreting that law;
Lawyers 21
Introduction
54As to monism and dualism Higgins states that of “course, whichever view you take, there is still the
problem of which
system prevails when there is a clash between the two”; and that “in the real world the answer often
depends upon the tribunal
answering it (whether it is a tribunal of international or domestic law) and upon the question asked”; in her
view different “courts
do address that problem differently”, see Rosalyn Higgins, Problems and Process: International Law and
How We Use It (Oxford,
Clarendon Press, 1994), p. 205.
_ When there is a legal vacuum: In some countries there may be an absence
of
national legislation with regard, inter alia, to human rights; but, depending on
the
circumstances, judges and lawyers may be able to rely on international human
rights
law as well as relevant international case-law – or domestic case-law from other
countries – in order to apply some basic legal principles for the protection of the
human person.
Numerous efforts have been made in recent years – both through the
technical assistance programmes of the United Nations, and through various
training
programmes provided by regional organizations such as the Organization of
American
States, the Council of Europe and the Organization for Security and Cooperation
in
Europe – to help States adjust their laws to their international legal obligations,
and also
to train the legal professions so as to enable them to make human rights a living
reality
within their specific jurisdictions. Numerous independent human rights institutes
and
non-governmental organizations (NGOs) also have extensive training
programmes for
the various legal professions.
States may not invoke their internal law to justify violations of
international law, but are free to choose the modalities for implementing
that law.
4.2 The application of international human rights law
in domestic courts: some practical examples
A growing number of domestic courts in both common-law and civil-law
countries now regularly interpret and apply international human rights
standards. The
following cases show how such standards can influence decisions taken by
domestic
courts.
Germany: In a case involving an American pianist belonging to the Church of
Scientology and the Government of Baden-Württemberg, the Administrative
Court of
Appeal of Baden-Württemberg considered the grounds of appeal of the plaintiff
in the
light not only of the German Basic Law but also of article 9 of the European
Convention on Human Rights and articles 18 and 26 of the International
Covenant on
Civil and Political Rights.
The complaint originated in negotiations between an agent acting on behalf of
the Government and the pianist, regarding the latter’s participation in a concert
to be
held in connection with the presentation to the public of the framework
programme for
the World Athletics Championship. The negotiations were broken off when it
became
known that the pianist concerned was a member of the Church of Scientology. In
a
written reply to a question put by the Parliament of Baden-Württemberg, the
Ministry
of Culture and Sport, acting in concertation with the Ministry of the Family,
Women,
Education and Art, explained that the promotion by the State of cultural events
must be
questioned when the persons performing are active and self-avowed members of
the
Church of Scientology or other similar groups; for this reason they had declined
to
engage the pianist as originally envisaged. The pianist argued that his right to
freedom
and Lawyers
Introduction
of religion had been violated by the written reply from the Ministries. However,
the
Administrative Court of Appeal concluded that the protection afforded by article
9 of
the European Convention and article 18 of the International Covenant had not
been
infringed. As to the alleged violation of article 26 of the International Covenant,
the
Court likewise found that it had not been violated, since the ministerial reply did
not
result in discriminatory treatment of the pianist on the basis of his beliefs or
religious
convictions, the reply being limited to the announcement of a specific procedure
to be
followed in the future with regard to the allocation of grants made available for
the
organization of events by third persons/agents. For this reason, and considering
that
the plaintiff in this case was not himself a recipient of any grant, it was not
necessary to
clarify whether he could base himself inter alia on the protection afforded by
article 26
of the International Covenant, were an application for a grant to be rejected on
the
abovementioned ground.55
New Zealand: The 1994 Simpson v. Attorney General case, one of the most
famous
human rights cases in New Zealand, originated in an allegedly unreasonable
search of
the plaintiff’s home which, it was claimed, violated the New Zealand Bill of Rights
Act
1990. In its decision, the Court of Appeal emphasized that the purposes of the
Bill of
Rights were to
“affirm, protect, and promote human rights and fundamental freedoms in
New Zealand and to affirm New Zealand’s commitment to the
International Covenant on Civil and Political Rights. From these purposes,
it was implicit that effective remedies should be available to any person
whose Bill of Rights guarantees were alleged to have been violated”.56
When there had “been an infringement of the rights of an innocent person”,
“monetary compensation was”, in the view of the Court, “an appropriate and
proper,
indeed the only effective, remedy”.57 As observed by the Court, that “was
consistent
with a rights-centred approach to the Bill of Rights and international
jurisprudence on
remedies for human rights violations”, and reference was in this respect, inter
alia,
made to the jurisprudence on remedies of both the Human Rights Committee
and the
Inter-American Court of Human Rights.58
United Kingdom: The most prominent case decided in recent years in which
international human rights law played an important role is the case of Pinochet,
which
was decided by the House of Lords on 24 March 1999, and which originated in a
request that the Chilean Senator – and former Head of the Chilean State – be
extradited
from the United Kingdom to Spain to be tried for crimes of torture and conspiracy
to
torture, hostage-taking and conspiracy to take hostages, as well as conspiracy to
commit
murder – acts committed whilst he was still in power. The obligations to which
the 1984
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment gave rise, were incorporated into United Kingdom law by Section
134 of
the Criminal Justice Act 1988, which entered into force on 29 September 1988.
The
Lawyers 23
Introduction
55Urteil vom 15. Oktober 1996, Verwaltungsgerichtshof Baden-Württemberg, 10 S 1765/96, in particular,
pp. 11-16: as to
article 26 of the International Covenant, see p. 16.
56Simpson v. Attorney General (1994) 1 HRNZ at 42-43.
57Ibid., at 43.
58Ibid., loc. cit.
Convention against Torture as such was ratified on 8 December 1988. By virtue
of
these changes, torture, wherever it takes place in the world, became a triable
criminal
offence in the United Kingdom. The question before the House of Lords on
second
appeal turned on whether there were any extraditable offences and, in the
affirmative,
whether Senator Pinochet was immune from trial for committing those crimes.59
The
question of double criminality became an important issue, with a majority of the
Lords
being of the view that Senator Pinochet could be extradited only on charges
concerning
acts which were criminal in the United Kingdom when they took place. A majority
of the
law Lords concluded that State immunity in respect of torture had been excluded
by the
Convention against Torture, and that the offences of torture and conspiracy to
torture
committed after 8 December 1988 were extraditable, with a minority of the
House of
Lords holding that English courts had extraterritorial jurisdiction as from 29
September
1988 when Section 134 of the Criminal Justice Act 1988 entered into force.
This decision allowed the United Kingdom Home Secretary to go ahead with
the proceedings relating to the relevant parts of the Spanish request for Senator
Pinochet’s extradition. However, on 2 March 2000, after medical experts had
concluded that the former Head of State of Chile was unfit to stand trial, the
Home
Secretary decided that he would not be extradited to Spain but was free to leave
Britain.
In spite of its final outcome, this case is a landmark in the international law of
human
rights in that it confirmed the erosion of the notion of State immunity for
international
crimes as a result of the entry into force of the Convention against Torture.
South Africa: The example of South Africa is significant in that, after the
collapse of the apartheid regime, it drafted a constitution which was heavily
influenced
by international human rights standards and which contains, in its Chapter 2, a
detailed
Bill of Rights, which includes a wide range of rights, such as the right to equality,
the
right to freedom and security of the person, the freedoms of expression,
assembly and
association, political rights, environmental rights, the right to property, the right
of
access to adequate housing, the right to health care services, sufficient food and
water,
social security, the rights of the child, the right to basic education, the right of
access to
courts and the rights of arrested, detained and accused persons.
International human rights law has had a considerable impact on the
development of law at the domestic level and is now frequently invoked
and applied by domestic courts.
and Lawyers
Introduction
59See definition of question by Lord Brown Wilkinson, House of Lords, Judgment of 24 March 1999 – Regina
v. Bartle and the
Commissioner of Police for the Metropolis and Others Ex Parte Pinochet; Regina v. Evans and Another and
the Commissioner of Police for the
Metropolis and Others Ex Parte Pinochet (On Appeal from a Divisional Court of the Queen’s Bench Division);
this Judgment is found on the
following web site: http://www.publications.parliament.uk.
5. The Role of the Legal Professions

in the Implementation of Human
Rights
As a consequence of legal developments over the last few decades, human
rights have ceased to be a “fringe activity”, instead becoming “an area of law
which is
fundamental to everyone and which permeates all legal activity, economic and
social, in
public law and in private”.60 In a particularly interesting recent development, the
“pervasive importance of human rights law” to corporations and business
lawyers has
also been recognized.61 Yet, whilst the influence of international human rights
law on
many dimensions of domestic law is thus steadily gaining ground, its true
potential still
remains to be explored.62
It is the professional role and duty of judges, prosecutors and lawyers
throughout the world to explore this potential, and at all times to use their
respective
competences to ensure that a just rule of law prevails, including respect for
the rights
of the individual. Whilst this entire Manual focuses on providing knowledge and
guidance to the legal professions in their daily work, Chapter 4 will focus on the
specific
rules and principles conditioning the work of judges, prosecutors and lawyers.
These
rules and principles have to be consistently and meticulously applied, since
judges,
prosecutors and lawyers perhaps have the single most important role to play in
applying
national and international human rights law. Their work constitutes the chief
pillar of
the effective legal protection of human rights, without which the noble principles
aimed at protecting the individual against the abuse of power are likely to be
sapped of
much or even all of their significance.
6. Concluding Remarks
The present chapter has provided a synopsis of the modern development of
the international protection of the human person, which originated in a
devastated
world’s yearning for peaceful, secure and just domestic and international legal
orders.
Further, it has explained some of the basic legal notions relevant to international
human
rights law and offered a description, however general, of the role to be played by
the
legal professions within their respective fields of competence in order to be able
effectively to use the legal tools available to protect the human person against
abuses of
power. We shall now turn to a succinct examination of the terms and functioning
of the
major existing universal and regional human rights conventions.
Lawyers 25
Introduction
60See editorial of Lord Goldsmith QC and Nicholas R. Cowdery QC, “The Role of the Lawyer in Human
Rights”, in HRI
News (Newsletter of the IBA Human Rights Institute), vol. 4, No. 2, 1999, p. 1.
61Ibid., loc. cit. See also Nicholas R. Cowdery QC, “Human Rights in Commercial Practice – an IBA
Perspective”, ibid., pp.
16-18, and Stephen Bottomley, “Corporations and Human Rights”, ibid., pp. 19-22.
62See reference to speech of Justice Kirby, ibid., p. 10.
.........Chapter 2
THE MAJOR UNIVERSAL
HUMAN RIGHTS
INSTRUMENTS AND THE
MECHANISMS FOR THEIR
IMPLEMENTATION................
Learning Objectives
_ To familiarize participants with the major universal human rights treaties
and their
modes of implementation and to highlight the contents of some other
relevant legal
instruments;
_ To provide a basic understanding of how these legal resources can be
used by legal
practitioners, principally at the domestic level but also to some extent at
the
international level.
Questions
_ Have you, in the exercise of your professional activities as judges,
prosecutors, or
lawyers, ever been faced with an accused person, defendant, respondent
or client
alleging violations of his or her rights?
_ What was your response?
_ Were you aware that international human rights law might provide
guidance in
solving the problem?
_ Were you aware that the alleged victim might ultimately bring his or her
grievances to
the attention of an international monitoring organ?
_ If not, would such an awareness have changed your manner of
responding to the
alleged violations of his or her human rights?
_ Have you ever brought a case against your country before an
international organ on
behalf of an alleged victim of a human rights violation?
_ If so, what was the outcome of the case?
_ What was your experience generally of making such a complaint?
Lawyers 27
1. Introduction
1.1 Scope of the chapter
This chapter will provide some basic information about the extent of the
substantive protection and the mechanisms for controlling the
implementation of
some of the major human rights treaties that exist at the universal level. Given
that the
number of these treaties has grown steadily in recent decades, it will only be
possible,
within this limited framework, to deal with those conventions that are of general
scope
in that they recognize a long list of rights, as well as a few conventions that have
been
adopted with the specific object of focusing on particularly invidious practices
such as
genocide, torture, racial discrimination and discrimination against women. This
choice
has been made on the grounds that these are the treaties that judges,
prosecutors and
practising lawyers are most likely to have to interpret and apply in the course of
the daily
exercise of their legal responsibilities.
The chapter will thus first deal with the major treaties concluded within the
framework of the United Nations. Second, it will deal briefly with some of the
main
resolutions adopted by the United Nations General Assembly, since, although
they are
not legally binding per se, their contents have, as a very minimum, a significant
politico-moral value which constitutes an important source of guidance and
inspiration
to national judges, prosecutors and lawyers. Next, brief reference will be made to
some
instruments adopted by the United Nations Congress on the Prevention of Crime
and
the Treatment of Offenders as well as the General Conference of the United
Nations
Educational, Scientific and Cultural Organization (UNESCO). Lastly, this chapter
will
provide some basic information about the United Nations extra-conventional
mechanisms for human rights monitoring, which apply to all Members States of
the
United Nations on the basis of their general legal undertaking “to take joint and
separate action in co-operation with the Organization for the achievement of the
[purpose of promoting] universal respect for, and observance of, human rights
and
fundamental freedoms for all without distinction as to race, sex, language or
religion”
(Art. 56 of the Charter of the United Nations read in conjunction with Art. 55(c)).
1.2 The international treaty-based control
mechanisms
Each of the treaties dealt with in this chapter has a different system for its
implementation, ranging from general and specific reporting procedures to
quasi-judicial and judicial mechanisms involving the adjudication of
complaints
brought by individuals or groups of individuals, and, in some instances, even by
other
States. These various procedures can in many respects be said to be
complementary,
and, although they have slightly different immediate purposes, the overall goal
of
human rights protection is identical in each case.
Broadly speaking, the reporting procedures have the function of making
regular and systematic inventories of progress made in the implementation of
the treaty
obligations, with the aim of creating a dialogue between the relevant
international
and Lawyers
Chapter 2 • The Major Universal Human Rights Instruments and the Mechanisms for Their
Implementation
monitoring organ and the State party concerned for the purpose of assisting the
latter in
introducing the adjustments to domestic law and practice required by its
international
treaty obligations. These reports are examined and discussed in public and in the
presence of representatives of the State party. While the aim of this dialogue is
of course
to arrive at a general amelioration of the human rights situation obtaining in the
country concerned, there is no possibility for individual relief in case of
violations.
There is also an ever-growing tendency for non-governmental organizations
(NGOs)
to be involved in the work of the various committees. These organizations are
important sources of information regarding the human rights situation in the
countries
under examination, and they often have specialized knowledge of the legal
issues dealt
with in the committees. They can therefore make useful indirect contributions to
the
discussions.
In preparing their periodic reports to the various international monitoring
organs, the States parties are obliged to provide in-depth information not only
about
the formal state of the law within their jurisdiction, but also about the manner of
its
practical application. When preparing these reports, the States parties may well
also
need the assistance of members of the various legal professions.1
As to the quasi-judicial and strictly judicial procedures, these are only set in
motion by a complaint (communication, petition) filed by an individual or, under
some
treaties, a group of individuals, or even States parties. Their specific aim is to
remedy
possible human rights violations in the particular case brought before the
tribunals or
committees with the ultimate aim, where need be, of inducing States to modify
their law
so as to bring it into conformity with their international legal obligations.
Numerous
changes in domestic law have now taken place in many countries as a result of
international legal procedures, be they universal or regional.
However, it is essential to stress that international procedures can never be
considered to be a substitute for efficient legal procedures at the
domestic level.
Human rights are made a true reality at the domestic level by the domestic
authorities,
and, as emphasized in Chapter 1, the international complaints procedures are
subsidiary
to the available domestic systems for safeguarding the individual: they provide a
remedy
of last resort, when the internal mechanisms for ensuring an efficient protection
of
human rights standards have failed.
The international treaty-based control mechanisms in the human rights
field consist of reporting procedures and the adjudication of individual or
inter-State complaints.
International procedures for the protection of human rights and freedoms
are subsidiary to existing procedures in the national legal system of every
State.
International procedures can never be considered to be a substitute for
efficient domestic legal procedures for the protection of human rights.
Lawyers 29
Implementation
1As to how to draft these reports, see Manual on Human Rights Reporting, published by the United Nations,
the United Nations
Institute for Training and Research (UNITAR) and the United Nations Centre for Human Rights, 464 pp.
(hereinafter referred to as
Manual on Human Rights Reporting).
1.3 Civil and political rights, and economic, social
and cultural rights
As will be shown in further detail in Chapter 14 of this Manual, the
interdependence of civil, cultural, economic, political and social rights has been
emphasized by the United Nations ever since its inception. However, it is
important at
the outset to put to rest a frequently invoked distinction between civil and
political
rights, on the one hand, and economic, social and cultural rights on the other.
According to this distinction, all that States basically have to do in order to
respect civil
and political rights is to refrain from killing, enforced disappearance, torture and
other
such practices; whereas in order to implement the other group of rights they
have to
undertake forceful positive actions.
However, as has already been pointed out in Chapter 1, and as will be further
demonstrated in other chapters of this Manual, there are indeed many situations
which
impose on States positive obligations to comply with their international legal
duties in
the field of civil and political rights as well.
When one examines, from a purely practical point of view, the reasons why in
many countries worldwide people are still being killed and subjected to other
forms of
unlawful treatment, it becomes abundantly clear that it is precisely because
States have
not taken the resolutely positive actions required in order to put an end to these
practices that human rights violations persist. Rarely, if ever, do such practices
go away
by themselves, and for States to adopt a position of inaction is thus not an
adequate and
sufficient means of ensuring that they comply with their international legal
obligations.
States also have to undertake significant efforts both to organize free and fair
elections
at regular intervals and to set up and maintain an efficient, independent and
impartial
judiciary.
This imperative need for positive action to secure compliance with
international human rights obligations is an important factor to be borne in mind
at all
times by judges, prosecutors and lawyers in the exercise of their professional
responsibilities.
In order effectively to respect and ensure civil and political rights, it may
not be sufficient for States simply to do nothing. States may have to take
strong positive action in order to comply with their legal obligations in this
field.
and Lawyers
Implementation
2. The Major United Nations

Human Rights Treaties and their
Implementation
2.1 The International Covenant on Civil and
Political Rights, 1966, and its two Protocols,
1966 and 1989
The International Covenant on Civil and Political Rights and the Optional
Protocol recognizing “the competence of the Committee to receive and consider
communications from individuals” were both adopted by the General Assembly
in
1966 and entered into force on 23 March 1976. The Covenant established an
expert
body, the Human Rights Committee, which has authority: (1) to review reports
from
the States parties; (2) to adopt General Comments on the meaning of the
provisions of
the Covenant; (3) under certain conditions to deal with inter-State
communications;
and lastly (4), to receive individual communications under the Optional Protocol.2
On 8 February 2002 there were 148 States parties to the Covenant and 101
States parties to the First Optional Protocol.3 As of 27 July 2001, 47 States had
made the
declaration under article 41(1) of the Covenant whereby they recognize inter-
State
communications. This particular article entered into force on 28 March 1979.
In 1989, the General Assembly adopted the Second Optional Protocol to the
International Covenant on Civil and Political Rights, aiming at the abolition of the
death penalty. This Protocol entered into force on 11 July 1991 and as of 8
February
2002 had 46 States parties.
2.1.1 The undertakings of the States parties
Under article 2 of the International Covenant on Civil and Political Rights,
each State party “undertakes to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the ... Covenant,
without
distinction of any kind, such as race, colour, sex, language, religion, political or
other
opinion, national or social origin, property, birth or other status”.4 As emphasized
by
the Human Rights Committee in its General Comment No. 3, the Covenant is not,
consequently, “confined to the respect of human rights, but ... States parties
have also
undertaken to ensure the enjoyment of these rights to all individuals under
their
jurisdiction”, an undertaking that in principle “relates to all rights set forth in the
Lawyers 31
Implementation
2For more information about the International Covenant on Civil and Political Rights and its reporting
procedure, see Fausto
Pocar, “The International Covenant on Civil and Political Rights”, in Manual on Human Rights Reporting, pp.
131-235.
3For an update of ratifications see Status of Ratifications of the Principal International Human Rights
Treaties at the following UN web
site: www.unhchr.ch.
4It should be noted that, as is indicated by the words “such as”, and as will be further explained in Chapter
13 of this Manual,
this list of prohibited grounds of discrimination is not exhaustive.
Covenant”.5 The legal duty to ensure their enjoyment implies an obligation to
take
positive steps to see to it
_ first, that domestic laws are modified when necessary in order to comply with
the
State’s international legal obligations; and
_ second, that these laws are indeed effectively implemented in practice by all
public
organs and officials, such as the courts (including administrative tribunals),
prosecutors, police officers, prison officials, schools, the military, hospitals and
the
like.
Upon ratification of a treaty aimed at the protection of human rights and
fundamental freedoms, States have a legal duty to modify their legislation
so as to have it conform to their new international obligations.
States have also to continue to ensure that their legal obligations are
effectively implemented by all relevant organs, including all courts of law.
2.1.2 The rights recognized
Being a treaty of a legislative nature, the International Covenant on Civil and
Political Rights guarantees a long list of rights and freedoms, not all of which fall
within
the themes covered by this Manual and which will not, therefore, be dealt with in
detail.
However, any existing General Comments adopted by the Human Rights
Committee
relating to specific articles will be referred to in footnotes; these comments
provide
information about the Committee’s understanding of the articles concerned.
Moreover, the second volume of the Committee’s annual reports to the General
Assembly contains Views and decisions adopted by the Committee under the
Optional Protocol, which include indispensable information for judges,
prosecutors
and lawyers regarding the interpretation of the terms of the Covenant.6
and Lawyers
Implementation
5General Comment No. 3 (Article 2) in UN doc. HRI/GEN/1/Rev.5, Compilation of General Comments and
General Recommendations
Adopted by Human Rights Treaty Bodies (hereinafter referred to as United Nations Compilation of General
Comments), p. 112, para. 1; emphasis
added. The texts of the General Comments are also published in the Human Rights Committee’s annual
reports; their text can also be
found at the following UN web site: www.unhchr.ch.
6In the earlier years of the Committee’s existence, its annual reports to the General Assembly consisted of a
single volume,
containing both an account of the discussions of the periodic reports and the Views and decisions adopted
under the Optional
Protocol.
The right to self-determination
The International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights contain a common article 1(1)
proclaiming the right of all peoples to self-determination, by virtue of which they
“freely determine their political status and freely pursue their economic, social and
cultural development”. Furthermore, common article 1(2) provides that “all peoples
may, for their own ends, freely dispose of their natural wealth and resources” and that
“in no case may a people be deprived of its own means of subsistence”. The right to
self-determination in the widest sense is consequently considered to be a
precondition for the full enjoyment of civil, cultural, economic, political and social
rights. This common article can also be read in the light of the Declaration on the
Granting of Independence to Colonial Countries and Peoples, which was adopted by
the United Nations General Assembly at the height of the decolonization process in
1960 and which equated “the subjection of peoples to alien subjugation, domination
and exploitation” to a denial of human rights and a violation of the Charter of the
United Nations (operative paragraph 1).
The following is a list of the extensive rights guaranteed by the International
Covenant on Civil and Political Rights:
_ the right to life – art. 6;7
_ the right to freedom from torture or cruel, inhuman or degrading treatment or
punishment, including a prohibition on being subjected to medical or scientific
experimentation without one’s free consent – art. 7;8
_ the right to freedom from slavery, the slave-trade and servitude – art. 8(1) and
(2);
_ the right to freedom from forced and compulsory labour – art. 8(3);
_ the right to liberty and security of person, including freedom from arbitrary
arrest
and detention – art 9;9
_ the right of persons deprived of their liberty to be treated with humanity and
with
respect for the inherent dignity of the human person – art. 10;10
_ prohibition of imprisonment merely on the ground of inability to fulfil a
contractual
obligation – art. 11;
_ liberty of movement and freedom to choose one’s residence – art. 12(1);
_ the right to be free to leave any country, including one’s own – art. 12(2);
_ the right not to be arbitrarily deprived of the right to enter one’s own country –
art. 12(4);
Lawyers 33
Implementation
7General Comment No. 6, in United Nations Compilation of General Comments, pp. 114-116 and General
Comment No. 14, ibid.,
pp. 126-127.
8General Comment No. 7, ibid., pp. 116-117, which is replaced and further developed by General Comment
No. 20, ibid.,
pp. 139-141.
9General Comment No. 8, ibid., pp. 117-118.
10General Comment No. 9, ibid., pp. 118-119, which is replaced and further developed by General Comment
No. 21, ibid,
pp. 141-143.
_ certain legal safeguards against unlawful expulsions of aliens lawfully in the
territory
of a State party – art. 13;11
_ the right to a fair hearing in criminal and civil cases by an independent and
impartial
tribunal – art. 14;12
_ freedom from ex post facto laws and the retroactive application of heavier
penalties
than those that could be imposed when the crime was committed – art. 15;
_ the right to recognition as a person before the law – art. 16;
_ the right not to be subjected to arbitrary or unlawful interference with one’s
privacy,
family, home or correspondence or to unlawful attacks on one’s honour and
reputation – art. 17;13
_ the right to freedom of thought, conscience and religion – art. 18;14
_ the right to freedom of opinion and of expression – art. 19;15
_ prohibition of war propaganda and of advocacy of national, racial, or religious
hatred constituting incitement to discrimination, hostility or violence – art. 20;16
_ the right to peaceful assembly – art. 21;
_ the right to freedom of association – art. 22;
_ the right to marry freely, to found a family and to equal rights and
responsibilities of
spouses as to marriage, during marriage and at its dissolution – art. 23;17
_ the right of the child to special protection without discrimination; the right to be
registered upon birth and the right to a nationality – art. 24;18
_ the right to popular participation in public affairs; the right to vote in periodic
elections by universal and equal suffrage and secret ballot, as well as the right to
have
access to public service – art. 25;19
_ the right to equality before the law and the equal protection of the law – art.
26;20
_ the right of minorities to enjoy their own culture, religion and language – art.
27.21
2.1.3 Permissible limitations on the exercise of rights
Some of the rights listed above, such as the right to freedom of movement
(art. 12(3)), the right to manifest one’s religion or beliefs (art. 18(3)), the
exercise of the
rights to freedom of expression (art. 19(3)), to peaceful assembly (art. 21), and
to
freedom of association (art. 22(2)), can be limited for certain specifically defined
and Lawyers
Implementation
20On the question of non-discrimination in general see, in particular, General Comment No. 18, ibid., pp.
134-137. As to the
duty of the States parties to ensure the equal rights of men and women, see also General Comment No. 4,
ibid., p. 113, which has
been replaced by General Comment No. 28 (Article 3 – Equality of rights between men and women), ibid.,
pp. 168-174.
objectives, such as national security, public order, public health and morals, or
respect
for the fundamental rights of others.
However, the limitations can only be lawfully imposed if they are provided
or prescribed by law and are also necessary in a democratic society for
one or
more of the legitimate purposes defined in the provisions concerned. It
is true that
the reference to “a democratic society” is only to be found in articles 21 and
22(2)
concerning the limitations that can be imposed respectively on the exercise of
the right
to peaceful assembly and the right to freedom of association, whilst it is absent
from the
limitation provisions regarding the right to freedom of movement, the right to
freedom
to manifest one’s religion or beliefs and the right to freedom of expression.
However, it
follows from an interpretation of these provisions in the light of the wider context
of
the Covenant itself, as well as its object and purpose, that this notion forms an
intrinsic
part of all limitation provisions concerned and will consequently condition their
interpretation.22
As pointed out in Chapter 1, the limitation provisions reflect carefully
weighed individual and general interests which have also to be balanced against
each
other when the limitations are applied in a specific case. This means not only
that the
laws per se that provide for the possibility of limitations on the exercise of rights
must
be proportionate to the stated legitimate aim, but also that the criterion of
proportionality must be respected when applied to a specific individual.
The subsidiarity of the international system for the protection of human rights
means, however, that it falls in the first instance to the domestic authorities to
assess
both the legitimate need for any restrictions on the exercise of human rights and
also
their necessity/proportionality. The additional international supervision of the
measures taken comes into play only in connection with the examination of the
States
parties’ reports or individual communications submitted under the First Optional
Protocol.
The criteria to look for in order to determine whether the exercise of a
right has been lawfully limited are:
_ the principle of legality, in that the restrictive measure must be based
in law;
_ the principle of a legitimate aim in a democratic society; restrictions on
the exercise of human rights cannot be lawfully justified under the
Covenant for reasons not expressly contained therein or for purposes
alien to the effective protection of human rights;
_ the principle of proportionality, in that the interference with the
exercise of the individual’s right must be necessary for the legitimate
purpose or purposes; it follows that it is not sufficient that the measure
is simply reasonable or possibly advisable: it must be necessary.
Lawyers 35
Implementation
22See Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception –
With Special Reference to the
Travaux Préparatoires and Case-Law of the International Monitoring Organs (The Hague/Boston/London,
Martinus Nijhoff Publishers,
1998), pp. 112-114, in particular the reasoning on p. 113.
2.1.4 Permissible derogations from legal obligations
The question of derogations from international legal obligations in the human
rights field will be given a more thorough treatment in Chapter 16 of this Manual,
but it
may be useful at this early stage briefly to outline the strict conditions that
govern the
right of the States parties to resort to derogations from their legal obligations
under
article 4 of the Covenant:
_ the condition of a “public emergency which threatens the life of the
nation”:
the State party envisaging a derogation must be facing a situation of exceptional
threat that jeopardizes the nation’s life, thus excluding minor or even more
serious
disturbances that do not affect the functioning of the State’s democratic
institutions
or people’s lives in general;
_ the condition of official proclamation: the existence of a public emergency
which
threatens the life of the nation must be “officially proclaimed” (art. 4(1)); as was
explained during the drafting of article 4, the purpose thereof was “to prevent
States
from derogating arbitrarily from their obligations under the Covenant when such
an
action was not warranted by events”;23
_ the condition of non-derogability of certain obligations: article 4(2) of
the
Covenant enumerates some rights from which no derogation can ever be made
even
in the direst of situations. These rights are: the right to life (art. 6), the right to
freedom from torture or cruel, inhuman or degrading treatment or punishment
(art.
7), the right to freedom from slavery, the slave-trade and servitude (art. 8(1) and
(2)),
the right not to be imprisoned merely on the ground of inability to fulfil a
contractual obligation (art. 11), the prohibition of ex post facto laws (art. 15), the
right
to legal personality (art. 16) and, lastly, the right to freedom of thought,
conscience
and religion (art. 18). However, it follows from the work of the Human Rights
Committee that it is not possible to conclude a contrario that, because a specific
right
is not listed in article 4(2), it can necessarily be derogated from. Consequently,
some
rights may not be derogated from because they are considered to be “inherent
to the
Covenant as a whole”; one such example is the right to judicial remedies in
connection with arrests and detentions as set out in article 9(3) and (4);24 others
may
also be non-derogable because they are indispensable to the effective
enjoyment of
the rights that are explicitly listed in article 4(2), such as the right to a fair trial
for
persons threatened with the death penalty.25 The Committee has further held
under
the Optional Protocol that “the right to be tried by an independent and impartial
tribunal is an absolute right that may suffer no exception”;26
and Lawyers
Implementation
23UN doc. E/CN.4/SR.195, p. 16, para. 82; explanation given by Mr. Cassin of France.
24See in particular the reply of the Human Rights Committee to the request by the Sub-Commission on
Prevention of
Discrimination and Protection of Minorities that the Committee consider a draft protocol for the purpose of
strengthening the
right to a fair trial, UN doc. GAOR, A/49/40(vol. I), pp. 4-5, paras. 22-25.
25Cf. article 6(2) which provides that the death penalty cannot be imposed “contrary to the provisions of the
present
Covenant”; as to the case-law, see e.g. Communication No. 16/1977, D. Monguya Mbenge v. Zaire (views
adopted on 25 March 1983),
GAOR, A/38/40, p. 139, para. 17. The requirement concerns “both the substantive and the procedural law in
the application of
which the death penalty was imposed”.
26Communication No. 263/1987, M. González del Río v. Peru (views adopted on 28 October 1992, at the
46th session), GAOR, A/48/40
(vol. II), p. 20, para. 5.2; emphasis added.
_ the condition of strict necessity: this condition means that the State party
can only
take measures derogating from its “obligations under the ... Covenant to the
extent
strictly required by the exigencies of the situation”; as compared to the ordinary
limitation provisions dealt with above, the condition of strict necessity compels a
narrow construction of the principle of proportionality, in that the legislative
measures taken must as such be strictly required by the exigencies of the
emergency
situation; and, secondly, any individual measure taken on the basis of that
legislation must likewise be strictly proportionate. It is thus necessary to consider
whether the measures concerned are strictly required in order to deal with the
emergency situation. The Committee has emphasized in general that “measures
taken under article 4 are of an exceptional and temporary nature and may only
last as
long as the life of the nation concerned is threatened”;27
_ the condition of consistency with other international legal obligations:
on the
basis of this condition, the Human Rights Committee is, in principle, authorized
to
examine whether measures of derogation might be unlawful as being
inconsistent
with other international treaties, such as, for instance, other treaties for the
protection of the individual or even international humanitarian law or customary
international law;
_ the condition of non-discrimination: the measures of derogation may not
“involve discrimination solely on the ground of race, colour, sex, language,
religion
or social origin” (art. 4(1) in fine). This is an important condition since it is
particularly in emergency situations that there is a risk of imposing
discriminatory
measures which have no objective and reasonable justification;
_ the condition of international notification: in order to avail itself of the
right of
derogation, a State party must, lastly, also fulfil the conditions set out in article
4(3)
of the Covenant, by immediately submitting a notification of derogation to the
other States parties through the Secretary-General. In this notification it must
describe “the provisions from which it has derogated and ... the reasons by
which it
was actuated”. A second notification must be submitted “on the date on which it
terminates such derogation”.
General Comment No. 29, which was adopted by the Human Rights
Committee in July 2001, provides more details as to the interpretation of the
various
conditions laid down in article 4 of the Covenant. This Comment will be dealt with
in
Chapter 16, which will provide a more comprehensive analysis of States’ right to
derogate
from their international human rights obligations in certain exceptional
situations.
In certain exceptional situations amounting to a threat to the life of the
nation, the States parties to the International Covenant on Civil and
Political Rights may derogate from their legal obligations incurred
thereunder to the extent “strictly required by the exigencies of the
situation”.
Such derogations must also comply with the principles of non-derogable
rights, non-discrimination, consistency with the State’s other international
obligations and the principle of international notification.
Lawyers 37
Implementation
27General Comment No. 5, in United Nations Compilation of General Comments, p. 114, para. 3.
2.1.5 The implementation mechanisms
The implementation of the Covenant is monitored by the Human Rights
Committee, which consists of eighteen members serving in their individual
capacity
(art. 28). The monitoring takes three forms, namely, the submission of periodic
reports,
inter-State communications, and individual communications:
_ the reporting procedure: according to article 40 of the Covenant, the States
parties
“undertake to submit reports on the measures they have adopted which give
effect
to the rights” recognized therein and “on the progress made in the enjoyment of
those rights”, first within one year of the entry into force of the Covenant for the
States parties concerned, and thereafter, whenever the Committee so requests,
that
is to say, every five years. The reports “shall indicate the factors and difficulties,
if
any, affecting the implementation of the ... Covenant”, and the Committee has
developed careful guidelines aimed both at facilitating the task of the States
parties
and rendering the reports more efficient. In July 1999 the Committee adopted
consolidated guidelines for the submission of the reports of the States parties;28
_ inter-State communications: as noted in section 2.1, States parties to the
Covenant may at any time declare under article 41 that they recognize “the
competence of the Committee to receive and consider communications to the
effect that a State Party claims that another State Party is not fulfilling its
obligations
under the present Covenant”; in other words, the possibility of bringing inter-
State
communications is only valid as between States parties having made this kind of
declaration. During the initial stage of the proceedings, the communication is
only
brought to the attention of one State party by another, and it is only if the matter
is
not settled to the satisfaction of both States parties within a period of six months
that either State party has the right to bring the matter before the Committee
itself
(art. 41(1)(a) and (b)). The Committee has to follow a procedure prescribed in
article
41(1)(c)-(h), but, since it was never used during the first 25 years of the
Committee’s
existence, it will not be dealt with further here;
_ individual communications: under article 1 of the Optional Protocol, a State
Party thereto “recognizes the competence of the Committee to receive and
consider
communications from individuals subject to its jurisdiction who claim to be
victims
of a violation by that State Party of any of the rights set forth in the Covenant”.
However, according to article 2 of the Optional Protocol, individuals claiming
violations of their rights must first exhaust all remedies available to them at the
domestic level; further, the Committee shall consider inadmissible any
communication which is anonymous, or which it considers to amount to an abuse
of the right of submission of communications or to be incompatible with the
provisions of the Covenant (art. 3). If the communication raises a serious issue
under the Covenant, the Committee submits it to the State party concerned,
which
has the possibility to submit its written explanations within a period of six
months.
The procedure before the Committee is therefore exclusively written and the
discussions in the Committee on the communications take place behind closed
doors (arts. 4-5). At the end of its consideration of a communication, the
Committee adopts its “Views” thereon, which are sent both to the State party
and to
the individual concerned (art. 5(4)).
and Lawyers
Implementation
28See UN doc. CCPR/C/66/GUI.
Numerous communications have been submitted under the Optional
Protocol and have in some cases led to changes in domestic legislation.
The implementation mechanisms of the International Covenant on Civil
and Political Rights are:
_ the reporting procedure (art. 40);
_ inter-State communications (art. 41); and
_ individual communications (art. 1, Optional Protocol).
2.2 The International Covenant on Economic,

Social and Cultural Rights, 1966
The International Covenant on Economic, Social and Cultural Rights was
adopted by the United Nations General Assembly in 1966, and entered into force
on 3
January 1976. On 8 February 2002 there were 145 States parties to the
Covenant. The
Covenant establishes a reporting procedure on the measures the States parties
have
adopted and the progress made in achieving the observance of the rights
contained in
the Covenant (art. 16). The United Nations Economic and Social Council is
formally
entrusted under the Covenant with the task of monitoring compliance by the
States
parties with their legal obligations incurred under the Covenant; but since 1987
this task
has been carried out by the Committee on Economic, Social and Cultural Rights,
which
consequently is not, strictly speaking, a treaty organ like the Human Rights
Committee.29
Why are there two International Covenants?
Both the International Covenant on Civil and Political Rights and the International
Covenant on Economic, Social and Cultural Rights were first elaborated by the
United Nations Commission on Human Rights and were contained in one document
until it was decided, after much debate, to separate them and draft two covenants that
were to be adopted simultaneously. The reason for this split was the more complex
nature of economic, social and cultural rights, which required particularly careful
drafting and implementation mechanisms adapted to the specific nature of those
rights. In view of States’ differing levels of development, the International Covenant
on Economic, Social and Cultural Rights had also to provide for the possibility of
progressive implementation, although this was never intended to mean that no
immediate obligations would be incurred thereunder.30
Lawyers 39
Implementation
29For more information about the International Covenant on Economic, Social and Cultural Rights and the
reporting
procedure, see Philip Alston, “The International Covenant on Economic, Social and Cultural Rights”, in
Manual on Human Rights
Reporting, pp. 57-129.
30For more details on the debates in this respect, see Chapter 14, subsection 2.2.
Each State party to the International Covenant on Economic, Social and
Cultural Rights “undertakes to take steps, individually and through international
assistance and co-operation, especially economic and technical, to the maximum
of its
available resources, with a view to achieving progressively the full realization of
the
rights recognized in the ... Covenant by all appropriate means, including
particularly the
adoption of legislative measures” (art. 2(1)). Although the Covenant thus
“provides for
progressive realization and acknowledges the constraints due to limits of
available
resources”, the Committee emphasized in General Comment No. 3 that “it also
imposes various obligations which are of immediate effect”. In the view of the
Committee, two of these are of particular importance, namely: first, the
undertaking in
article 2(2) “to guarantee that the rights enunciated in the ... Covenant will be
exercised
without discrimination” on certain specific grounds; and second, the undertaking
in
article 2(1) “‘to take steps’, which in itself, is not qualified or limited by other
considerations”.31 In other words, “while the full realization of the relevant rights
may
be achieved progressively, steps towards that goal must be taken within a
reasonably
short time after the Covenant’s entry into force for the States concerned. Such
steps
should be deliberate, concrete and targeted as clearly as possible towards
meeting the
obligations recognized in the Covenant”.32
The following rights are recognized in the International Covenant on
Economic, Social and Cultural Rights. Wherever the Committee has adopted
General
Comments relevant to the understanding of these rights, they will be referred to
in a
footnote.
_ the right to work, including the right to gain one’s living by work freely chosen
or
accepted – art. 6;
_ the right to enjoy just and favourable conditions of work, including fair
remuneration for work of equal value without distinction of any kind – art. 7;
_ the right to form trade unions and join the trade union of one’s choice – art. 8;
_ the right to social security, including social insurance – art. 9;
_ protection and assistance to the family; marriage to be freely entered into;
maternity
protection; protection and assistance to children and young persons – art. 10;
_ right to an adequate standard of living, including adequate food,33 clothing and
housing,34 and to the continuous improvement of living conditions – art. 11;
_ the right to the highest attainable standard of physical and mental health – art.
12;
_ the right to education – art. 13;35
and Lawyers
Implementation
31See General Comment No. 3 (The nature of States parties’ obligations (art. 2. para. 1), in United Nations
Comments, p. 18, paras. 1 and 2.
32Ibid., p. 18, para. 2.
33General Comment No. 12 (The right to adequate food – art. 11), ibid., pp. 66-74.
34General Comment No. 4 (The right to adequate housing – art. 11(1)), ibid., pp. 22-27, and see also
General Comment No.
7 (The right to adequate housing – art. 11(1): forced evictions), ibid., pp. 49-54.
35General Comment No. 13 (The right to education – art. 13), ibid., pp. 74-89.
_ the undertaking to develop detailed plans of action where compulsory primary
education is not yet secured – art. 14;36
_ the right to take part in cultural life, to enjoy the benefits of scientific progress
and to
benefit from the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which one is the author – art. 15.
2.2.3 Permissible limitations on rights
The International Covenant on Economic, Social and Cultural Rights
contains a general limitation in article 4, whereby the State may subject the
enjoyment
of the rights guaranteed by the Covenant “only to such limitations as are
determined by
law only in so far as this may be compatible with the nature of these rights and
solely for
the purpose of promoting the general welfare in a democratic society”.
Furthermore,
limitations relating to the exercise of specific rights are also contained in article
8(1)(a)
and (c), where the exercise of the right to form and join trade unions, as well as
the right
of trade unions to function freely, may be subjected to no restrictions other than
“those
prescribed by law and which are necessary in a democratic society in the
interests of
national security or public order or for the protection of the rights and freedoms
of
others”. From the travaux préparatoires relating to article 4 it is clear that it was
considered
important to include the condition that limitations had to be compatible with a
democratic society, that is to say, “a society based on respect for the rights and
freedoms of others”;37 otherwise, it was suggested, the text might instead “very
well
serve the ends of dictatorship”.38
Unlike the International Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and Cultural Rights does
not
contain any provision permitting derogations from the legal obligations
incurred thereunder. It is therefore logical that none of the rights contained in
this
Covenant has been made specifically non-derogable. However, as noted by a
member
of the Committee on Economic, Social and Cultural Rights, “the specific
requirements
that must be met in order to justify the imposition of limitations in accordance
with
article 4 will be difficult to satisfy in most cases”.39 In particular, for a limitation
to be
compatible with article 4, it would have to be “determined by law”, “compatible
with
the nature of these rights”, and solely designed to promote “the general welfare
in a
democratic society”.40
Lawyers 41
Implementation
36General Comment No. 11 (Plans of action for primary education – art. 14), ibid., pp. 63-66.
37See UN doc. E/CN.4/SR.235, p. 9, statement by Mr. Ciasullo of Uruguay.
38See ibid., p. 20 and also p. 11, statement by Mr. Eustathiades of Greece.
39See Philip Alston, “The International Covenant on Economic, Social and Cultural Rights”, in Manual on
Human Rights
Reporting, p. 74.
40Ibid., loc. cit.
The enjoyment of the rights guaranteed by the International Covenant on
Economic, Social and Cultural Rights may be subjected only to such
limitations as are:
_ determined by law;
_ compatible with the nature of these rights; and
_ aimed at promoting the general welfare in a democratic society.
contains no provision allowing for derogations from the legal obligations
incurred thereunder.
2.2.4 The implementation mechanism
Under article 16 of the Covenant, the States parties undertake to submit
“reports on the measures which they have adopted and the progress made in
achieving
the observance of the rights recognized” therein, and it is the United Nations
Economic and Social Council that is formally entrusted with monitoring
compliance
with the terms thereof (art. 16(2)(a)). However, since the early arrangements for
examining the periodic reports were not satisfactory, the Council created, in
1985, the
Committee on Economic, Social and Cultural Rights as an organ of independent
experts parallel to the Human Rights Committee set up under the International
Covenant on Civil and Political Rights.41 The Committee consists of eighteen
members
who serve in their individual capacity.
As is the case with the Human Rights Committee, the reports submitted by
the States parties are considered in public meetings and in the presence of
representatives of the State party concerned. The discussion “is designed to
achieve a
constructive and mutually rewarding dialogue” so that the Committee members
can get
a fuller picture of the situation prevailing in the country concerned, thereby
enabling
them to make “the comments they believe most appropriate for the most
effective
implementation of the obligations contained in the Covenant”.42
Following an invitation by the Economic and Social Council, the Committee
on Economic, Social and Cultural Rights began adopting General Comments
“with a
view to assisting the States parties in fulfilling their reporting obligations”.43 The
General Comments are based on the experience gained by the Committee
through the
reporting procedure, and draw the attention of the States parties to
insufficiencies
revealed, and also suggest improvements to that procedure. Lastly, the General
Comments are aimed at stimulating the activities of the States parties as well as
of the
international organizations and specialized agencies concerned to achieve
“progressively and effectively the full realization of the rights recognized in the
Covenant”.44
and Lawyers
Implementation
41Ibid., p. 117. See also pp. 118-119. For the terms of the resolution creating the Committee, see ECOSOC
res. 1985/17 of
28 May 1985.
42Ibid., p. 121.
43See UN doc. E/2000/22 (E/C.12/1999/11), p. 22, para. 49.
44Ibid., p. 22, para. 51.
So far, attempts at drafting an additional protocol for the purpose of creating
an individual complaints procedure have proved unsuccessful.
The implementation mechanism under the International Covenant on
Economic, Social and Cultural Rights consists exclusively of a reporting
system.
2.3 The Convention on the Rights of the Child,
1989, and its two Optional Protocols, 2000
Although children are also protected by the general treaties for the protection
of the human being, it was considered important to elaborate a convention
dealing
specifically with children’s particular needs. After ten years of work, the
Convention on
the Rights of the Child was adopted by the General Assembly in 1989 and
entered into
force on 2 September 1990. On 8 February 2002 there were 191 States parties
to the
Convention. Within just a few years of its adoption the Convention had been
almost
universally ratified, and has begun to have an important impact on the decisions
of
domestic courts. The guiding principle throughout this Convention is that “in all
actions concerning children ... the best interests of the child shall be a
primary
consideration” (art. 3(1); emphasis added).45
The Convention establishes a Committee on the Rights of the Child “for the
purpose of examining the progress made by States Parties in achieving the
realization of
the obligations undertaken in the ... Convention” (art. 43(1)).
On 25 May 2000, the General Assembly further adopted two Optional
Protocols to the Convention, namely, the Optional Protocol on the sale of
children,
child prostitution and child pornography, and the Optional Protocol on the
involvement of children in armed conflict. The first Optional Protocol entered into
force on 18 January 2002, that is, three months after the deposit of the tenth
instrument
of ratification or accession (art. 14(1)), while the second Optional Protocol
entered into
force on 13 February 2002 after the same conditions had been fulfilled (art.
10(1)).46 As
of 8 February 2002 these Protocols had respectively 17 and 14 ratifications.
As in the two International Covenants, the States parties to the Convention
on the Rights of the Child generally undertake to “respect and ensure the rights
set
forth in the ... Convention to each child within their jurisdiction without
discrimination
of any kind” (art. 2(1)), and to “take all appropriate measures to ensure that the
child is
Lawyers 43
Implementation
45For an extensive explanation of the meaning of the terms of the Convention, see Implementation
Handbook for the Convention on
the Rights of the Child, prepared for UNICEF by Rachel Hodgkin and Peter Newell, UNICEF, 1998, 681 pp.
(hereinafter referred to
as UNICEF Implementation Handbook).
46See text and date of entry into force of the Optional Protocol to the Convention on the Rights of the Child
on the sale of
children, child prostitution and child pornography: http://www.unhchr.ch/html/menu2/dopchild.htm and, as
to the Optional
Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict:
http://www.unhchr.ch/html/menu2/6/protocolchild.htm
protected against all forms of discrimination or punishment on the basis of
status,
activities, expressed opinions, or beliefs of the child’s parents, legal guardians,
or family
members” (art. 2(2)). As in all human rights treaties dealt with in this Manual,
the
principle of non-discrimination is also a fundamental principle with regard to the
rights
of the child and it conditions the interpretation and application of all the rights
and
freedoms contained in the Convention. In its General Guidelines Regarding the
Form
and Contents of Periodic Reports, adopted in October 1996, the Committee on
the
Rights of the Child gave detailed instructions to the States parties as to required
contents of the periodic reports with regard to each specific legal obligation,
such as the
right to non-discrimination and the specific rights dealt with below.47
The States parties to the Convention on the Rights of the Child must
respect and ensure the rights guaranteed thereby without
discrimination of any kind.
The guiding principle throughout the Convention is that the best
interests of the child must be a primary consideration.
The Convention recognizes a long and detailed list of rights that must be
respected and ensured to the child at all times, that is to say, to “every human
being
below the age of eighteen years unless under the law applicable to the child,
majority is
attained earlier” (art. 1). However, the rights guaranteed will here be reflected
only in
general terms:
_ the child’s right to life and maximum survival and development – art. 6;
_ the child’s right to registration at birth, to a name, a nationality, and, to the
extent
possible, “to know and be cared for by his or her parents” – art. 7;
_ the child’s right to an identity, including nationality, name and family relations
– art.
8;
_ the right of the child not to be separated from his or her parents against their
will
unless “such separation is necessary for the best interests of the child” – art.
9(1);
_ the duty of States to facilitate family reunification by permitting travel into or
out of
their territories – art. 10;
_ duty to combat illicit transfer and non-return of children abroad – art. 11;
_ duty to respect the views of the child and the right of the child “to be heard in
any
judicial and administrative proceedings affecting” itself – art. 12;
_ the child’s right to freedom of expression – art. 13;
_ the child’s right to freedom of thought, conscience and religion – art. 14;
_ the child’s right to freedom of association and to freedom of peaceful assembly
–
art. 15;
and Lawyers
Implementation
47General Guidelines Regarding the Form and Contents of Periodic Reports to be Submitted by States
Parties under Article 44, Paragraph 1(b),
of the Convention, adopted by the Committee on the Rights of the Child at its 343rd meeting (thirteenth
session) on 11 October
1996, published in UNICEF Implementation Handbook, pp. 604-618.
_ the child’s right to legal protection against arbitrary and unlawful interference
with
his or her privacy, family, home or correspondence and the right not to be
subjected
to “unlawful attacks” on his or her honour or reputation – art. 16;
_ the child’s right of “access to information and material from a diversity of
national
and international sources, especially those aimed at the promotion of his or her
social, spiritual and moral well-being and physical and mental health” – art. 17;
_ recognition of the principle that both parents have common and primary
responsibility for the upbringing and development of the child and that the “best
interests of the child will be their basic concern” – art. 18(1);
_ the child’s right to protection against all forms of violence and abuse – art. 19;
_ the child’s right to special protection and assistance when deprived of his or
her
family – art. 20;
_ whenever adoption is recognized or permitted, States parties “shall ensure that
the
best interests of the child shall be the paramount consideration” – art. 21;
_ rights of refugee children – art. 22;
_ rights of the mentally or physically disabled child – art. 23;
_ right of the child to the “highest attainable standard of health” and to health
services
– art. 24;
_ the right of the child placed in care to “periodic review of the treatment
provided to
the child and all other circumstances relevant to his or her placement” – art. 25;
_ the child’s right to benefit from social security, including social insurance – art.
26;
_ the child’s right to an adequate standard of living – art. 27;
_ the child’s right to education (art. 28) and the aims of that education (art.
29);48
_ the right of children belonging to ethnic, religious or linguistic minorities, as
well as
the right of children of indigenous origin, to enjoy their own culture, religion and
language – art. 30;
_ the child’s right to rest and leisure – art. 31;
_ the child’s right to protection against economic exploitation and hazardous
work –
art. 32;
_ the child’s right to protection against the illicit use of drugs and psychotropic
substances – art. 33;
_ the child’s right to protection “from all forms of sexual exploitation and sexual
abuse” – art. 34;
_ the prevention of the abduction and sale of, or traffic in, children – art. 35;
_ the child’s right to protection against all other forms of exploitation prejudicial
to
any aspects of its welfare – art. 36;
_ the right to freedom from torture or other cruel, inhuman or degrading
treatment or
punishment, including capital punishment – art. 37(a);
Lawyers 45
Implementation
48During its twenty-third session held in January 2000, “the Committee decided to engage in the drafting
process of a general
comment on article 29 of the Convention (aims of education), in view of the forthcoming World Conference
against Racism,
Racial Discrimination, Xenophobia and Related Intolerance”; see UN doc. CRC/C/94, Report on the twenty-
third session of the
Committee on the Rights of the Child, p. 103, para. 480.
_ the child’s right not to be deprived of his or her liberty arbitrarily and unlawfully
–
art. 37(b);
_ the child’s right to humane treatment whilst deprived of his or her liberty –
art. 37(c);
_ the child’s right to legal safeguards in connection with deprivation of liberty –
art. 37(d);
_ the child’s right in armed conflicts to respect for the relevant rules of
international
humanitarian law – art. 38(1);
_ the child’s right to appropriate measures to promote physical and psychological
recovery and social integration in case of any form of neglect, exploitation or
abuse
– art. 39;
_ principles of juvenile justice – art. 40.
As can be seen, these rights not only cover the more traditional human rights
standards found, for instance, in the International Covenants on Civil and Political
Rights and on Economic, Social and Cultural Rights, but they have also been
expanded
and refined and are drafted so as to respond specifically to the varying needs of
the
many young people who continue to suffer various forms of hardship.
According to article 1 of the Optional Protocol to the Convention on the
Rights of the Child on the sale of children, child prostitution and child
pornography,
the “States Parties shall prohibit the sale of children, child prostitution and child
pornography as provided by the ... Protocol”. Article 2 of the Protocol explains
the
notions of “sale of children”, “child prostitution” and “child pornography”, while
article 3 lists the acts which must, as a minimum, be “fully covered” by the
States
parties’ criminal law. Other provisions provide details as to the duty of the States
parties
to establish jurisdiction over the relevant offences, and to provide assistance in
connection with investigations or criminal or extradition proceedings, seizure and
confiscation, international cooperation, and in other areas (arts. 4-11).
The Optional Protocol to the Convention on the Rights of the Child on the
involvement of children in armed conflict raises the age for direct participation in
hostilities to 18 years, and imposes on the States parties an obligation to
“ensure that
persons who have not attained the age of 18 years are not compulsorily
recruited into
their armed forces” (arts. 1 and 2). According to article 3 of the Protocol the
States
parties shall also “raise the minimum age for the voluntary recruitment of
persons into
their national armed forces” from that of 15 years of age which is authorized in
article
38(3) of the Convention itself; those States which allow the voluntary
recruitment of
persons under 18 years of age, shall inter alia ensure that “such recruitment is
genuinely
voluntary” and “carried out with the informed consent of the person’s parents or
legal
guardians” (art. 3(a) and (b)).
The Convention on the Rights of the Child contains no general limitation
provision and only three articles provide for the right to impose limitations on the
exercise of rights, namely, the exercise of the right to freedom of expression
(art. 13(2)),
the right to freedom to manifest one’s religion and beliefs (art. 14(3)), and the
right to
and Lawyers
Implementation
the freedoms of association and peaceful assembly (art. 15(2)). In all these
provisions
the limitative measures must be based in law and be necessary for the stated
purposes.
Only in relation to the exercise of the right to freedom of association and
assembly is it
expressly stated that the measures concerned must also be “necessary in a
democratic
society”.
Although the Convention contains few limitation provisions, many of the
undertakings of the States parties are linked to the term “appropriate”, which is,
of
course, open to interpretation. However, it is an interpretation that must in all
circumstances be conditioned by “the best interests of the child”. Another factor
that
may have to be taken into consideration by States in this connection is the
balance
between the interests of the child itself and “the rights and duties” of his or her
parents
(cf. arts. 3(3) and 5).
Lastly, the Convention on the Rights of the Child contains no derogation
provision, and it can therefore be concluded that the Convention was intended to
be
applied in its entirety even in exceptional crisis situations.
The Convention on the Rights of the Child contains no general limitation
provision. Specific limitation provisions are linked only to the exercise of
the freedom of expression, the freedom to manifest one’s religion and
belief
and the freedoms of association and peaceful assembly.
In general, the interpretation of the terms of the Convention must
primarily aim at the best interests of the child but should take into
account the rights and duties of his or her parents.
The system of implementation of the Convention on the Rights of the Child
(arts. 42-45) is similar to the reporting procedures under the two International
Covenants and it will therefore suffice to refer here to what has already been
stated
above. Like the other Committees, the Committee on the Rights of the Child has
also
issued Guidelines for reports to be submitted by States parties under the
Convention.49
2.4 The Convention on the Prevention and
Punishment of the Crime of Genocide, 1948
The Convention on the Prevention and Punishment of the Crime of
Genocide was adopted by the General Assembly on 9 December 1948 and
entered into
force on 12 January 1951. As of 26 April 2002 it had 135 States parties. The
Convention
does not create any specific implementation mechanism, but, as will be seen
below, leaves
the implementation to the Contracting Parties themselves.
Lawyers 47
Implementation
49See supra, note 47.
“The Contracting Parties confirm that genocide, whether committed in time
of peace or in time of war, is a crime under international law which they
undertake to
prevent and to punish” (art. I; emphasis added). To this end, they also
“undertake to
enact, in accordance with their respective Constitutions, the necessary
legislation to
give effect to the provisions of the ... Convention and, in particular, to provide
effective
penalties for persons guilty of genocide” or of conspiracy to commit, incitement
or
attempt to commit, or complicity in, the crime of genocide (art. V read in
conjunction
with art. III).
The fact that the Contracting Parties “confirm” in article I of the Convention
that genocide is “a crime under international law” is evidence that they
considered the
principles underlying the Convention to be already binding on them under
international customary law. As noted in Chapter 1 of this Manual, this was also
the
view expressed by the International Court of Justice in its 1951 Advisory Opinion
on
Reservations to the Convention on Genocide, in which it held that “the principles
underlying
the Convention are principles which are recognized ... as binding on States, even
without any conventional obligation”.50 However, the reliance in the Convention
on
national courts to repress an international crime proves that, in 1948, many
problems
remained to be solved with regard to the question of international criminal
jurisdiction;51 and it was not until the indiscriminate killings in parts of the former
Yugoslavia and in Rwanda in the 1990s that the concept of universal jurisdiction
over
international crime began to become a true reality (see further subsection 2.4.3).
2.4.2 The legal scope of the Convention
The legal scope of the Convention is limited to the prevention and
punishment of the crime of genocide which is defined in article II as meaning
“any of
the following acts committed with intent to destroy, in whole or in part, a
national,
ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group”.
The following acts are punishable: genocide, conspiracy to commit, direct or
indirect incitement and attempt to commit genocide, as well as complicity in
genocide
(art. III). Moreover, persons committing any of these acts are punishable
“whether they
are constitutionally responsible rulers, public officials or private individuals” (art.
IV).
and Lawyers
Implementation
50See supra, Chapter 1, section 2.4.2.
51Ian Brownlie, Principles of Public International Law (Oxford, Clarendon Press), 3rd edn., pp. 562-563.
The Genocide Convention was thus an important confirmation of the
principle spelled out in the Nuremberg Charter that in some cases individuals
have
international responsibility under international law which transcends partisan
national
interests and obligations of obedience.
2.4.3 International crimes: recent legal developments
The principle of individual criminal responsibility for particularly serious acts
was given new life when the Security Council decided, by resolution 808 (1993),
“that
an international tribunal shall be established for the prosecution of persons
responsible
for serious violations of international humanitarian law committed in the territory
of
the former Yugoslavia since 1991”. By resolution 827 (1993), the Security
Council next
approved the Statute of the International Criminal Tribunal for the former
Yugoslavia
(ICTY).
As amended in 1998, the Statute empowers the Tribunal to prosecute grave
breaches of the Geneva Conventions of 1949, violations of the laws and customs
of
war, genocide, and crimes against humanity, namely, murder, extermination,
enslavement, deportation, imprisonment, torture, rape, persecutions on political,
racial
and religious grounds, as well as “other inhumane acts” – a legal definition of
crime that
allows the Tribunal to consider also other kinds of large-scale human rights
abuses not
specifically listed in the Statute (arts. 1-5). The International Tribunal and the
national
courts have concurrent jurisdiction over the relevant crimes, although the former
“shall
have primacy over” the latter (art. 9 of the ICTY Statute).
In order to deal with the serious violations of humanitarian law committed in
Rwanda between 1 January and 31 December 1994, the Security Council
similarly
created the International Criminal Tribunal for Rwanda (ICTR) by resolution 955
(1994). The Statute of the Tribunal was adopted by that same resolution. The
Tribunal
has the power to prosecute persons having committed the following crimes:
genocide,
crimes against humanity of the same kind as those listed above with regard to
the ICTY,
as well as violations of article 3 common to the Geneva Conventions of 1949 and
of
Additional Protocol II (arts. 2-4 of the ICTR Statute). It may also deal with the
prosecution of these crimes committed by Rwandan citizens in the territory of
neighbouring States (art. 7 of the Statute).
The difference between the prosecution powers of the two Tribunals is due to
the fact that the war in the former Yugoslavia was considered to be an armed
conflict of
an international character, whilst the crisis situation in Rwanda was principally a
non-international armed conflict.
Lastly, on 17 July 1998, the Rome Statute of the International Criminal Court
was adopted by the United Nations Conference of Plenipotentiaries by a non-
recorded
vote of 120 to 7 with 21 abstentions.52 The establishment of this international,
permanent and independent judicial body was to end impunity for acts of
genocide,
crimes against humanity, war crimes and, on certain conditions, the crime of
aggression
(art. 5 of the Statute). The Court will be competent to try natural persons
irrespective of
Lawyers 49
Implementation
52See the following web site: http://www.icj.org/icc/iccdoc/mficc.htm, p. 1. For the text of the Rome Statute
of the
International Criminal Court, see UN doc. A/CONF.183/9.
their official capacity, but will not have jurisdiction over legal persons such as
States and
corporations (arts. 25 and 27). Further, as with the monitoring organs set up
under the
general human rights treaties, the International Criminal Court is subsidiary in
nature,
since, according to article 17 of its Statute, it will prosecute crimes only in cases
where
the State concerned is unwilling or unable genuinely to carry out the
investigation or
prosecution provided for in article 17(1)(a) and (b). It is for the International
Court
itself to determine, on the basis of specific criteria, the “unwillingness” or
“inability” of
a State to investigate or prosecute in a particular case (art. 17(2) and (3)).The
International Criminal Court, or, ICC as it is generally known, will come into
existence
after 60 States have ratified the Statute (art. 126). As of 11 April 2002, the
Statute had
been ratified by 66 States and it entered into force on 1 July 2002.53
The Convention on the Prevention and Punishment of the Crime of
Genocide aims at the prevention and punishment of genocide, including
conspiracy to commit, incitement and attempt to commit, or complicity in,
the crime of genocide. The principles underlying the Convention are,
however, binding on all States irrespective of any conventional obligation.
The new International Criminal Court provides the first international,
permanent and independent judicial body for the purpose of ending
impunity for acts of genocide, crimes against humanity, war crimes and,
on certain conditions, the crime of aggression.
2.5 The International Convention on the Elimination
of All Forms of Racial Discrimination, 1965
The International Convention on the Elimination of All Forms of Racial
Discrimination was adopted by the United Nations General Assembly on 21
December
1965 and entered into force on 4 January 1969. As of 8 April 2002 it had 161
States
parties. The Convention established a Committee on the Elimination of Racial
Discrimination which monitors the implementation of the Convention. The
Committee adopts, when necessary, General Recommendations concerning
specific
articles or issues of special interest. These recommendations will be referred to
whenever relevant.
For the purposes of the Convention, “the term ‘racial discrimination’ shall
mean any distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect of nullifying
or
impairing the recognition, enjoyment or exercise, on an equal footing, of human
rights
and fundamental freedoms in the political, economic, social, cultural or any other
field
of public life” (art. 1(1); emphasis added). However, “special measures taken
for the
sole purpose of securing adequate advancement of certain racial or ethnic
groups or
and Lawyers
Implementation
53See UN web site www.un.org/law/icc/index/html.
individuals ... in order to ensure such groups or individuals equal enjoyment or
exercise
of human rights and fundamental freedoms shall not be deemed racial
discrimination,
provided [that they do not] lead to the maintenance of separate rights for
different racial
groups and that they shall not be continued after the objectives for which they
were
taken have been achieved” (art. 1(4); emphasis added).54
The States parties to the Convention “condemn racial discrimination and
undertake to pursue by all appropriate means and without delay a policy of
eliminating
racial discrimination in all its forms and promoting understanding among all
races” (art.
2(1)). To this end, they undertake, in particular,
_ “to engage in no act or practice of racial discrimination against persons, groups
of
persons or institutions and to ensure that all public authorities and public
institutions, national and local, shall act in conformity with this obligation” – art.
2(1)(a);
_ “not to sponsor, defend or support racial discrimination by any persons or
organizations” – art. 2(1)(b);
_ to “take effective measures to review” public policies at all levels and to amend
legislation which has “the effect of creating or perpetuating racial discrimination
wherever it exists” – art. 2(1)(c);
_ to “prohibit and bring to an end, by all appropriate means, ... racial
discrimination by
any persons, group or organization” – art. 2(1)(d);
_ “to encourage, where appropriate, integrationist multiracial organizations and
movements and other means of eliminating barriers between races, and to
discourage anything which tends to strengthen racial division” – art. 2(1)(e).
The States parties shall further “assure to everyone within their jurisdiction
effective protection and remedies” against acts violating a person’s human
rights
contrary to the Convention, as well as the right to seek from domestic tribunals
“just
and adequate reparation or satisfaction for any damage suffered as a result of
such
discrimination” (art. 6).
Lastly, they undertake, in particular, “to adopt immediate and effective
measures, particularly in the fields of teaching, education, culture and
information, with
a view to combating prejudices which lead to racial discrimination...” (art. 7).
2.5.2 The field of non-discrimination protected
The States parties undertake not only to prohibit and eliminate racial
discrimination, but also “to guarantee the right of everyone, without distinction
as to
race, colour, or national or ethnic origin, to equality before the law, notably in the
enjoyment of the following rights” (art. 5):
_ the right to equal treatment before the tribunals and all other organs
administering
justice – art. 5(a);
_ the right to security of person – art. 5(b);
Lawyers 51
Implementation
54For the reporting obligations of the States parties under these provisions, see General Recommendation
XXIV concerning
article 1 of the Convention, in UN doc. GAOR, A/54/18, Annex V, p. 103.
_ political rights, such as the right to participate in elections, to take part in the
Government and in the conduct of public affairs and to have equal access to
public
service – art. 5(c);
_ other civil rights, such as the right to freedom of movement and residence, the
right
to leave any country, including one’s own, and to return to one’s own country,
the
right to nationality, the right to marriage and choice of spouse, the right to own
property alone as well as in association with others, the right to inherit, the right
to
freedom of thought, conscience and religion, the right to freedom of opinion and
expression, the right to peaceful assembly and association – art. 5(d);
_ economic, social and cultural rights, and in particular the rights to work, to free
choice of employment, to just and favourable conditions of work, to protection
against unemployment, to equal pay for equal work, to just and favourable
remuneration, the right to form and join trade unions, the right to housing, the
right
to public health, medical care, social security and social services, the right to
education and training, the right to equal participation in cultural activities – art.
5(e); and
_ the “right of access to any place or service intended for use by the general
public,
such as transport, hotels, restaurants, cafés, theatres and parks” – art. 5(f).
As pointed out by the Committee itself in General Recommendation XX, the
enumeration of political, civil, economic, social and cultural rights in article 5 is
not
exhaustive and the right not to be subjected to racial discrimination in the
enjoyment of
rights may be invoked also in the exercise of rights not expressly mentioned
therein. In
other words, apart from requiring a guarantee that the exercise of human rights
shall be
free from racial discrimination, article 5, “does not of itself create [human rights,]
but
assumes the existence and recognition of these rights”, such as those derived
from the
Charter of the United Nations, the Universal Declaration of Human Rights and the
International Covenants on human rights. This also means that, whenever the
States
parties impose restrictions on the exercise of the rights enumerated in article 5,
they
“must ensure that neither in purpose nor effect is the restriction incompatible
with
article 1 of the Convention as an integral part of international human rights
standards”.55 It follows, consequently, that the limitations authorized under other
human rights treaties are indirectly included in article 5 of the Convention on the
Elimination of All Forms of Racial Discrimination, and that, conversely, the notion
of
racial discrimination as defined in article 1 of this Convention is inherent in the
international law of human rights as such.
Although, according to article 1 of the Convention, the prohibition of racial
discrimination relates to fields “of public life”, the Committee on the Elimination
of
Racial Discrimination has explained that “to the extent that private institutions
influence the exercise of rights or the availability of opportunities, the State
party must
ensure that the result has neither the purpose nor the effect of creating or
perpetuating
racial discrimination”.56
and Lawyers
Implementation
55United Nations Compilation of General Comments, pp. 188-189, paras. 1 and 2.
56Ibid., p. 189, para. 5.
The Convention created the Committee on the Elimination of Racial
Discrimination, which consists of eighteen members serving in their personal
capacity
(art. 8) and has the task of monitoring the implementation of the terms of the
Convention. Like the International Covenant on Civil and Political Rights, the
Convention on the Elimination of All Forms of Racial Discrimination has a
three-pronged implementation mechanism consisting of periodic reports, inter-
State
communications and communications from individuals, which will be briefly
described
below. Furthermore, the Committee adopts, when necessary, General
Recommendations concerning specific articles or issues of special interest. Below
is a
general description of the monitoring mechanisms:
_ the reporting procedure: the States parties undertake to submit, within one
year of
the entry into force of the Convention for the State concerned, an initial report,
and,
thereafter, every two years or whenever the Committee so requests, a report on
the
legislative, judicial, administrative or other measures taken to give effect to the
provisions of the Convention (art. 9(1)). Like the other Committees, the
Committee
on the Elimination of Racial Discrimination has adopted special guidelines on the
form and contents of the reports submitted by the States parties;
_ inter-State complaints: any State party which considers that another State
party is
not giving effect to the provisions of the Convention “may bring the matter to
the
attention of the Committee” (art. 11(1)). Unlike the case of the International
Covenant on Civil and Political Rights, no special declaration is needed to
recognize
this competence of the Committee to receive inter-State communications; the
Committee will however only deal with the matter if it has not first been settled
to
the satisfaction of both parties. Where the Committee is seized of the case, the
Convention foresees the appointment of an ad hoc Conciliation Commission,
which shall make its good offices “available to the States concerned with a view
to
an amicable solution of the matter on the basis of respect for” the Convention
(art.
12(1)(a)). When the Commission has considered the matter, it shall submit to the
Chairman of the Committee “a report embodying its findings on all questions of
fact relevant to the issue between the parties and containing such
recommendations
as it may think proper for the amicable solution of the dispute” (art. 13(1)). The
States parties can accept or reject the recommendations of the Conciliation
Commission (art. 13(2));
_ individual communications: a State party may also at any time declare that
it
considers the Committee competent “to receive and consider communications
from individuals or groups of individuals within its jurisdiction claiming to be
victims of a violation by that State Party of any of the rights set forth in this
Convention” (art. 14(1)). Article 14 entered into force on 3 December 1982, and,
as
of 17 August 2001, 34 of the States parties had made such a declaration.57
Lawyers 53
Implementation
57UN doc. GAOR, A/56/18, p. 10, para. 2.
The International Convention on the Elimination of All Forms of
Racial Discrimination prohibits such discrimination in the enjoyment of
human rights in all fields of public life.
States parties must however also ensure that, whenever private
institutions influence the exercise of rights or the availability of
opportunities, the result has neither the purpose nor the effect of creating
or perpetuating racial discrimination.
The Convention is implemented at the international level through: (1) a
reporting procedure; (2) inter-State complaints; and (3) individual
communications.
2.6 The Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment,
1984
Although outlawed by all the major human rights treaties, the widespread
practice of torture was considered to require more detailed legal regulation and
more
efficient implementation machinery. It was therefore decided to draft a
Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment,
which was adopted by the United Nations General Assembly on 10 December
1984. It
entered into force on 26 June 1987, and, as of 8 April 2002, there were 128
States parties
to the Convention. The Convention created an expert body, the Committee
against
Torture, to supervise the implementation of the obligations of the States parties.
According to the Convention, “the term ‘torture’ means any act by which
severe pain or suffering, whether physical or mental, is intentionally inflicted on
a
person for such purposes as obtaining from him or a third person information or
a
confession, punishing him for an act he or a third person has committed or is
suspected
of having committed, or intimidating or coercing him or a third person, or for any
reason based on discrimination of any kind, when such pain or suffering is
inflicted by
or at the instigation of or with the consent or acquiescence of a public official or
other
person acting in an official capacity”. However, “it does not include pain or
suffering
arising only from, inherent in or incidental to lawful sanctions” (art. 1).
Next, the Convention requires that “each State Party shall take effective
legislative, administrative, judicial or other measures to prevent acts of torture
in any
territory under its jurisdiction” (art. 2(1); emphasis added). It further specifies
that “no
exceptional circumstances whatsoever, whether a state of war or a
threat of war,
internal political instability or any other public emergency, may be
invoked as a
justification of torture” (art. 2(2); emphasis added). This is simply a
restatement of
already existing international human rights law, given that the right to freedom
from
torture is made non-derogable in the major relevant treaties, including the
International
Covenant on Civil and Political Rights.
and Lawyers
Implementation
Treatment or Punishment makes it clear that “an order from a superior officer or
a
public authority may not be invoked as a justification of torture” (art. 2(3)). In
other
words, the principle of individual responsibility for acts of torture is clearly
established.
2.6.2 The legal scope of the Convention
The following provisions of the Convention detail the responsibilities of the
States parties to prevent, punish, and remedy acts of torture. However, only
some of
the legal obligations will be outlined here, and in general terms:
_ “no State Party shall expel, return (“refouler”) or extradite a person to another
State
where there are substantial grounds for believing that he would be in danger of
being subjected to torture” – art. 3(1);
_ “each State Party shall ensure that all acts of torture are offences under its
criminal
law” and the same shall apply to attempts to commit torture and acts that
constitute
“complicity or participation in torture”. It shall, moreover, “make these offences
punishable by appropriate penalties which take into account their grave nature”
–
art. 4(1) and (2);
_ the States parties shall take the measures necessary to exercise their
jurisdiction over
the preceding offences and to submit the person alleged to have committed acts
contrary to article 4 of the Convention to the “competent authorities for the
purpose of prosecution” (arts. 5-7) and they shall moreover “afford one another
the
greatest measure of assistance in connection with criminal proceedings brought”
in
respect of any of these offences -art. 9;
_ “the offences referred to in article 4 shall be deemed to be included as
extraditable
offences in any extradition treaty existing between States Parties”, which also
“undertake to include such offences as extraditable offences in every extradition
treaty to be concluded between them” – art. 8;
_ the States parties shall further “ensure that education and information
regarding the
prohibition against torture are fully included in the training of law enforcement
personnel, civil or military, medical personnel, public officials and other persons
who may be involved in the custody, interrogation or treatment of any individual
subjected to any form of arrest, detention or imprisonment” – art. 10(1);
_ for purposes of prevention of torture, the States parties “shall keep under
systematic
review interrogation rules, instructions, methods and practices as well as
arrangements for the custody and treatment of persons subjected to any form”
of
deprivation of liberty – art. 11;
_ “each State Party shall ensure that its competent authorities proceed to a
prompt
and impartial investigation, wherever there is reasonable ground to believe that
an
act of torture has been committed ... ” – art. 12;
_ each State party shall further ensure that any alleged victim of torture “has the
right
to complain to, and to have his case promptly and impartially examined by, its
competent authorities” – art. 13;
_ “each State Party shall ensure in its legal system that the victim of an act of
torture
obtains redress and has an enforceable right to fair and adequate compensation,
including the means for as full rehabilitation as possible” – art. 14;
Lawyers 55
Implementation
_ “each State Party shall ensure that any statement which is established to have
been
made as a result of torture shall not be invoked as evidence in any proceedings,
except against a person accused of torture as evidence that the statement was
made”
– art. 15; and finally,
_ each State party also undertakes “to prevent in any territory under its
jurisdiction
other acts of cruel, inhuman or degrading treatment or punishment which do not
amount to torture as defined in article 1” of the Convention – art. 16.
As is clear from this general description of the legal obligations
incurred
under this Convention, the question of torture and other cruel, inhuman
or
degrading treatment or punishment and the State’s actual response
thereto is
highly relevant to judges, prosecutors and lawyers, who must at all
times be
prepared to look for signs of the existence of such unlawful acts.
The Committee against Torture, the independent ten-member expert body
(art. 17(1)) set up to supervise the implementation of the Convention has, like all
the
other treaty Committees dealt with in this chapter, the task of considering the
periodic
reports submitted by the States parties, but can also, when the States parties
have made
declarations to this effect, receive and consider communications from States
parties
and individuals. Whilst, as will be seen below, the Convention authorizes the
Committee to visit a country where torture is practised only with the consent of
the
State party concerned, efforts have been made since 1991 to draft an optional
protocol
to the Convention which would establish a preventive system of regular visits to
places
of detention. Although the participants in the World Conference on Human Rights
unanimously called for the early adoption of this optional protocol,58 no
agreement has
yet been reached on the contents thereof.59 In general terms, the monitoring
procedures can be described as follows:
_ the reporting procedure: the States parties are under an obligation to
submit
reports on the measures they have taken to give effect to their undertakings
under
the Convention within one year after its entry into force and thereafter every
four
years or when the Committee so requests (art. 19(1)). In order to facilitate the
elaboration of the reports, the Committee has adopted general guidelines on the
form and content of both the initial and periodic reports;60
_ activities of the Committee under article 20: this article is specific to the
Convention against Torture and provides that, “if the Committee receives
reliable
information which appears to it to contain well-founded indications that torture is
being systematically practised in the territory of a State party”, it “shall invite
that
State Party to co-operate in the examination of the information and to this end to
and Lawyers
Implementation
58UN doc. A/CONF.157/23, Vienna Declaration and Programme of Action, p. 22, para. 61.
59See resolution E/CN.4/RES/2000/35 adopted by the Commission on Human Rights on 20 April 2000 on
Draft optional
protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment; an open-ended Working Group is
attempting to draft the protocol.
60UN docs. CAT/C/4/Rev.2 (as to the initial reports) and CAT/C/14/Rev.1 (as to the periodic reports). For
more
information about the initial reporting procedure under this Convention, see also Joseph Voyame, “The
Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”, in Manual on Human Rights
Reporting, pp. 309-332.
submit observations with regard to the information concerned” (art. 20(1)).
However, the States parties may, when signing or ratifying the Convention or
when
acceding to it, declare that they do not recognize this competence of the
Committee
(art. 28(1)). As of 18 May 2001 a total of nine States parties had made such a
declaration.61 The documents and proceedings relating to the Committee’s
functions under this article are confidential, although “the Committee may, after
consultations with the State Party concerned, decide to include a summary
account
of the results of the proceedings in its annual report” to the States parties and to
the
General Assembly (art. 20(5));62
_ inter-State communications: as of 18 May 2001, 43 States parties had
declared that
they recognize the competence of the Committee to receive and consider
communications to the effect that a State party claims that another State party
is not
fulfilling its obligations under the Convention (art. 21(1)).63 The Committee will
consider the communication only if the matter has not been settled to the
satisfaction of both States parties. The procedure is confidential and the
Committee
“shall make available its good offices to the States Parties concerned with a view
to a
friendly solution of the matter on the basis of respect for the obligations provided
for in this Convention”. To this end it can set up an ad hoc conciliation
commission.
If no friendly solution is reached in the case, the Committee shall draw up a
report
which shall merely contain a “brief statement of the facts” of the case (art.
21(1));
_ individual communications: lastly, the Committee may receive
communications
from individuals claiming to be victims of a violation of the Convention if the
State
party concerned has expressly recognized its competence to do so (art. 22(1)).
As of
18 May 2001, 40 States parties had made a declaration to this effect.64 The
Committee shall however consider inadmissible any communication which is
anonymous, or which it considers to be an abuse of the right of submission of
communications or which is incompatible with the terms of the Convention (art.
22(2)). Before considering a communication the Committee must also, inter alia,
ascertain that the individual has exhausted all available domestic remedies,
unless
the application of remedies is unreasonably prolonged or is unlikely to bring
effective relief to the alleged victim (art. 22(5)(b)). Whilst the documents and
proceedings relating to individual communications are confidential, the views of
the
Committee are communicated to the parties and also made available to the
public.
The same also generally holds true with regard to the Committee’s decisions
whereby it declares communications inadmissible.65 Many of the Committee’s
views
and decisions are contained in its annual report to the General Assembly.
Lawyers 57
Implementation
61UN doc. GAOR, A/56/44, Annex II, p. 79.
63UN doc. GAOR, A/56/44, Annex III, pp. 80-81.
64Ibid., loc. cit.
The Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment confirms the well-established rule in
international law that no circumstances whatever, not even wars or other
public emergencies, can justify recourse to torture or other forms of
ill-treatment.
An order from a superior cannot be invoked as a justification of torture.
The Convention is implemented at the international level through:
(1) a reporting procedure; (2) the Committee’s special activities under
article 20; (3) inter-State communications; and (4) individual
communications.
2.7 The Convention on the Elimination of All Forms
of Discrimination against Women, 1979, and its
Protocol, 1999
The Convention on the Elimination of All Forms of Discrimination against
Women was adopted by the United Nations General Assembly on 18 December
1979
and entered into force on 3 September 1981. As of 8 April 2002 it had 168 States
parties. The Convention establishes an independent expert body, the Committee
on the
Elimination of Discrimination against Women, to monitor the implementation of
the
Convention. On 6 October 1999 the General Assembly further adopted, without a
vote, an Optional Protocol to the Convention, thereby making it possible for the
Committee, inter alia, to receive and consider communications from women or
groups
of women who consider themselves to be victims of gender discrimination within
the
jurisdiction of those States that have ratified or acceded to the Protocol. This
Protocol
entered into force on 22 December 2000, and as of 8 April 2002 had 30 States
parties.
For the purposes of the Convention the term “discrimination against women”
means “any distinction, exclusion or restriction made on the basis of sex which
has the
effect or purpose of impairing or nullifying the recognition, enjoyment or exercise
by
women, irrespective of their marital status, on a basis of equality of men and
women, of
human rights and fundamental freedoms in the political, economic, social,
cultural, civil
or any other field” (art. 1; emphasis added). The prohibition on discrimination
against
women is thus not limited to the traditional categories of human rights, but goes
beyond them to other fields where discrimination might occur. Furthermore, it is
not
limited to the public field but also extends to areas of private life.
It is noteworthy, however, that “temporary special measures aimed at
accelerating de facto equality between men and women shall not be considered
discrimination as defined in the present Convention”; however, such measures
“shall
be discontinued when the objectives of equality of opportunity and treatment
have
been achieved” (art. 4).
and Lawyers
Implementation
The States parties “agree to pursue by all appropriate means and without delay
a policy of eliminating discrimination against women and, to this end,
undertake”, in
particular (art. 2):
_ to embody the principle of equality of men and women in their national laws
and to
ensure the practical realization of this principle;
_ “to adopt appropriate legislative and other measures, including sanctions
where
appropriate, prohibiting all discrimination against women”;
_ to establish effective legal protection of the equal rights of women through
national
tribunals or other public institutions;
_ “to refrain from engaging in any act or practice of discrimination against
women”;
_ “to take all appropriate measures to eliminate discrimination against women by
any
person, organization or enterprise”; and
_ “to repeal all national penal provisions which constitute discrimination against
women ”.
The subsequent articles provide further details as to the undertakings of the
States parties to eliminate discrimination against women, which, inter alia,
comprise the
following obligations:
_ “to modify the social and cultural patterns of conduct of men and women ...
which
are based on the idea of the inferiority or the superiority of either of the sexes or
on
stereotyped roles for men and women” (art. 5(a));
_ “to ensure that family education includes a proper understanding of maternity
as a
social function and the recognition of the common responsibility of men and
women in the upbringing and development of their children, it being understood
that the interest of the children is the primordial consideration in all cases”
(art. 5(b));
_ to take all appropriate measures to suppress all forms of traffic in women and
exploitation of prostitution of women (art. 6), eliminate discrimination against
women in political and public life (arts. 7 and 866), in the fields of education (art.
10),
employment (art. 11) and health care (art. 12); in the areas of economic and
social
life (art. 13); as well as against women in rural areas (art. 14(2)).
2.7.2 The specific legal scope of the Convention
Whilst many articles in the Convention are framed as general legal obligations
on the States parties to “take appropriate measures” to eliminate discrimination
against
women, some at the same time specify the particular rights which must be
ensured on a
basis of equality of men and women. Thus, for instance:
_ with regard to education, women have the right, inter alia, to the same
conditions
for career and vocational training and the same opportunities for scholarships
and
other grants – art. 10;
Lawyers 59
Implementation
66General Recommendation No. 8 (Implementation of article 8), in United Nations Compilation of General
Comments, p. 206.
_ the right to work, to the same employment opportunities, to free choice of
profession and employment, to equal remuneration,67 to social security and to
protection of health – art. 11;
_ the right to family benefits, to bank loans, mortgages and other forms of
financial
credit and to participate in recreational facilities, sports and all aspects of
cultural life
– art. 13;
_ the right of rural women to participate in the elaboration and implementation
of
development plans, to have access to adequate health care facilities, to benefit
directly from social security programmes, to obtain all types of training and
education, to organize self-help groups, to participate in all community activities,
to
have access to agricultural credit and loans, and to enjoy adequate living
conditions
– art. 14.
Lastly, the Convention specifically imposes a duty on the States parties to
“accord to women equality with men before the law” as well as identical legal
capacity in
civil matters (art. 15(1) and (2)); and also obliges States parties to ensure them,
on a basis
of equality of men and women, a number of rights relating to marriage and the
family
(art. 16).
The Convention on the Elimination of All Forms of Discrimination
against Women thus covers all major fields of active life in society and
can also
serve as a useful tool for judges, prosecutors and lawyers in examining
questions
of equality between men and women under national legislation.
The monitoring mechanisms established under the Convention and its 1999
Protocol can briefly be described as follows:
_ the reporting procedure: the Convention per se has an implementation
mechanism that is less developed than those created by the treaties dealt with
above
in that it is limited to a reporting procedure, with the States parties undertaking
to send a
report to the Committee on the Elimination of Discrimination against Women,
indicating the factors and difficulties they encounter in fulfilling their obligations
under the Convention, within one year after the entry into force of the
Convention,
and thereafter every four years, or when the Committee so requests (art. 18).
The
Committee has adopted guidelines for the submission of periodic reports with
the
object of assisting the States parties in complying with their treaty obligations,
and,
as of June 1999, it had also adopted 24 General Recommendations under article
21
of the Convention;68 the recommendations can concern either specific provisions
of the Convention or what are called “cross-cutting” themes.69 The work of the
Committee on the Elimination of Discrimination against Women has been
rendered more difficult by the fact that the Convention limits its meeting time to
a
and Lawyers
Implementation
67General Recommendation No. 13 (Equal remuneration for work of equal value), ibid., p. 210.
68For more information as to the reporting procedure under this Convention, see Zagorka Ilic, “The
Convention on the
Elimination of All Forms of Discrimination against Women”, in Manual on Human Rights Reporting, pp. 265-
308. For the guidelines,
see UN doc. CEDAW/C/7/Rev.3, Guidelines for Preparation of Reports by States Parties.
69For a list of the General Recommendations adopted by the Committee, see the UN web site:
http://www.un.org/womenwatch/daw/cedaw/recommendations.htm.
maximum of two weeks annually (art. 20), whilst the meeting times of other
treaty
bodies have not been limited by the respective treaties. In its General
Recommendation No. 22, the Committee thus proposed that the States parties
amend article 20 “so as to allow it to meet annually for such duration as is
necessary
for the effective performance of its functions under the Convention”;70
_ individual communications: Since the entry into force on 22 December 2000
of
the Optional Protocol to the Convention on the Elimination of All Forms of
Discrimination against Women, the Committee has been competent to consider
petitions from individual women or groups of women having exhausted all their
domestic remedies. Petitions can also be submitted on behalf of individuals or
groups of individuals, with their consent, unless it can be shown why consent
was
not received (art. 2). The Optional Protocol also entitles the Committee to
conduct
confidential enquiries into grave or systematic violations of the Convention (art.
8).
The Convention on the Elimination of All Forms of Discrimination against
Women has provided a legal framework that has stimulated work in favour of
increased
equality between women and men in many parts of the world.
The Convention on the Elimination of All Forms of Discrimination
against Women provides a comprehensive legal framework for the
elimination of discrimination against women in their enjoyment of human
rights and fundamental freedoms in both the public and the private fields.
At the international level the Convention is implemented through (1) a
reporting procedure and (2) a system of individual communications.
3. Other Instruments Adopted by
the United Nations General
Assembly
This section will highlight a few of the most relevant resolutions adopted by
the General Assembly in the field of human rights, many of which will be dealt
with
specifically in some detail in other chapters of this Manual. As explained in
Chapter 1,
resolutions adopted by the General Assembly do not, as such, constitute legally
binding
obligations, but, depending on the circumstances of their adoption, they can
provide
useful evidence of customary international law.71 As a minimum, resolutions
adopted
by the General Assembly carry strong moral and political force and can be
regarded as
setting forth principles broadly accepted within the international community.72
Consequently, they can also provide important guidance to the domestic legal
Lawyers 61
Implementation
70See General Recommendation No. 22 (Amending article 20), United Nations Compilation of General
71See further supra, Chapter 1, section 2.4.2.
72See Human Rights: A Basic Handbook for UN Staff, United Nations, Office of the United Nations High
Commissioner for
Human Rights/United Nations Staff College Project, p. 5.
professions, in situations, for instance, where either international or domestic law
is not
sufficiently clear on a particular issue.
The following resolutions are among those that are of particular significance
for judges, prosecutors and lawyers in the exercise of their professional
responsibilities.
However, it is advisable to exercise care in seeking guidance,
particularly from
some of the older resolutions, since States may have become bound by
stricter
legal standards, either under their own domestic law, or under
international
conventions. As will be seen, many of these resolutions deal with the treatment
of
persons deprived of their liberty, including juveniles, and aim at eradicating
torture and
other kinds of inhuman treatment.
3.1 The Declaration on the Elimination of All Forms
of Intolerance and of Discrimination Based on
Religion or Belief, 1981
The Declaration on the Elimination of All Forms of Intolerance and of
Discrimination Based on Religion or Belief proclaims “the right to freedom of
thought,
conscience and religion”, and includes, inter alia, the freedom to have a religion
or
whatever belief of one’s choice, and to manifest this religion or belief either
individually
or in community with others (art. 1). It further provides that “no one shall be
subject to
discrimination by any State, institution, group of persons, or person on the
grounds of
religion or other belief” (art. 2(1)). States “shall take effective measures to
prevent and
eliminate discrimination on the grounds of religion or belief” and shall “make all
efforts
to enact or rescind legislation where necessary to prohibit any such
discrimination”
(art. 4).
3.2 The Basic Principles for the Treatment of
Prisoners, 1990
According to the Basic Principles for the Treatment of Prisoners, 1990, “all
prisoners shall be treated with the respect due to their inherent dignity and
value as
human beings”, and shall not be subjected to discrimination on various grounds
(Principles 1 and 2). “Except for those limitations that are demonstrably
necessitated by
the fact of incarceration, all prisoners shall retain the human rights and
fundamental
freedoms set out in the Universal Declaration of Human Rights, and, where the
State
concerned is a party”, the rights set out in other United Nations covenants
(Principle 5).
Prisoners shall have the right to take part in cultural activities and education and
be
enabled to undertake “meaningful remunerated employment” (Principles 6 and
8). The
Basic Principles also provide that efforts should be undertaken and encouraged
to
abolish solitary confinement as a punishment (Principle 7).
and Lawyers
Implementation
3.3 The Body of Principles for the Protection of All
Persons under Any Form of Detention or
Imprisonment, 1988
The Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, 1988, is a comprehensive statement of 39 principles,
which cannot be invoked to restrict the rights of persons deprived of their liberty
recognized by other national or international sources of law on the ground that
they are
not contained in this Body of Principles (Principle 3 and General Clause). The
Body of
Principles emphasizes, in particular, questions of effective control of all forms of
detention including judicial or other review of the continued detention. It further
provides details as to conditions of arrest, the notification of arrest or transfer to
a
different place of detention to the family or other persons, the right of a person
deprived of his or her liberty to communicate with family and legal counsel,
interrogations, impartial visits to places of detention to supervise the observance
of
laws and regulations and, for instance, the question of remedies to challenge
both the
lawfulness of the deprivation of liberty and the treatment to which the person
has been
subjected whilst deprived of his or her liberty.
3.4 The United Nations Rules for the Protection of
Juveniles Deprived of their Liberty, 1990
The United Nations Rules for the Protection of Juveniles Deprived of their
Liberty, 1990, emphasize that imprisonment for juveniles “should be used as a
last
resort” (Rule 1), and provide extensive guidance with regard to the rights of
juveniles
within the justice system, for instance, in connection with arrest or detention and
when
they are awaiting trial. They also regulate the management of juvenile facilities,
inter alia
with regard to record keeping, the physical environment and accommodation,
education, vocational training and work, recreation, religion, medical care,
limitations
of physical restraint and the use of force, disciplinary procedures, as well as
inspection
and complaints.
3.5 The Principles of Medical Ethics relevant to the
Role of Health Personnel, particularly Physicians,
in the Protection of Prisoners and Detainees
against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, 1982
The Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees against
Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1982, is a
brief set
of six principles which emphasize the duty of all health personnel charged with
the
medical care of prisoners and detainees to provide them with the same
protection of
their physical and mental care as is afforded to those who are not deprived of
their
Lawyers 63
Implementation
liberty (Principle 1). It is thus “a gross contravention of medical ethics, as well as
an
offence under applicable international instruments, for health personnel,
particularly
physicians, to engage, actively or passively, in acts which constitute participation
in,
complicity in, incitement to or attempts to commit torture or other cruel,
inhuman or
degrading treatment or punishment” (Principle 2). It is also a contravention of
medical
ethics, inter alia, for physicians, to “apply their knowledge and skills ... to assist
in the
interrogation of prisoners and detainees in a manner that may adversely affect
the
physical or mental health or condition of such prisoners or detainees” (Principle
4(a))
and “to participate in any procedure for restraining a prisoner or detainee unless
such a
procedure is determined in accordance with purely medical criteria” as being
necessary
for certain specifically identified purposes (Principle 5).
3.6 The Code of Conduct for Law Enforcement
Officials, 1979
The Code of Conduct for Law Enforcement Officials, 1979, is aimed at all
officers who exercise police powers, especially the powers of arrest and
detention (art. 1
with Commentary). “In the performance of their duty, law enforcement officials
shall
respect and protect human dignity and maintain and uphold the human rights of
all
persons” (art. 2). In particular, they “may use force only when strictly necessary
and to
the extent required for the performance of their duty” (art. 3) and may not
“inflict,
instigate or tolerate any act of torture or other cruel, inhuman or degrading
treatment or
punishment”. Furthermore, such acts cannot be justified by superior orders or
exceptional circumstances such as a state of war or other public emergencies
(art. 5).
Lastly, among other obligations, “law enforcement officials shall not commit any
act of
corruption” and “shall rigorously oppose and combat all such acts” (art. 7).
3.7 The United Nations Standard Minimum Rules for
Non-custodial Measures (The Tokyo Rules),
1990
The United Nations Standard Minimum Rules for Non-custodial Measures,
1990, also called The Tokyo Rules, “provide a set of basic principles to promote
the use
of non-custodial measures, as well as minimum safeguards for persons subject to
alternatives to imprisonment”, and are “intended to promote greater community
involvement in the management of criminal justice” and “to promote among
offenders
a sense of responsibility towards society” (General Principles 1.1 and 1.2). The
Rules
cover all stages from pre-trial, through the trial, sentencing and post-sentencing
stages,
and further deal, inter alia, with the implementation of non-custodial measures
(Principles 5-14).
and Lawyers
Implementation
3.8 The United Nations Guidelines for the Prevention
of Juvenile Delinquency (The Riyadh Guidelines),
1990
The United Nations Guidelines for the Prevention of Juvenile Delinquency,
1990, also called the Riyadh Guidelines, aim at the prevention of juvenile
delinquency
by pursuing “a child-centred orientation” whereby “young persons should have
an
active role and partnership within society and should not be considered as mere
objects
of socialization or control” (Fundamental Principle 3). The Guidelines, which
should
be interpreted and implemented within the framework of other existing relevant
international standards such as the International Covenants and the Convention
on the
Rights of the Child, deal with questions of general prevention (Guideline 9),
socialization processes (Guidelines 10-44), social policy (Guidelines 45-51),
legislation
and juvenile justice administration (Guidelines 52-59), and research, policy
development and coordination (Guidelines 60-66).
3.9 The United Nations Standard Minimum Rules
for the Administration of Juvenile Justice
(The Beijing Rules), 1985
The Standard Minimum Rules for the Administration of Juvenile Justice 1985,
also called the Beijing Rules, set forth detailed principles on the treatment of
juveniles
in the administration of justice, together with commentaries thereon. The rules
deal
with the age of criminal responsibility, the aims of juvenile justice, the rights of
juveniles, the protection of privacy, investigation and prosecution, adjudication
and
disposition, non-institutional and institutional treatment, and also with research,
planning, policy formulation and evaluation.
3.10 The Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, 1985
The first part of the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, 1985, contains rules on access to justice and fair
treatment
of victims of “acts or omissions that are in violation of criminal laws operative
within
the Member States, including those laws proscribing criminal abuse of power”
(Principles 4 and 1 read together). It further regulates the right to restitution,
compensation and assistance for victims of crime (Principles 8-17). Lastly, it
deals with
the situation of victims of “acts or omissions that do not yet constitute violations
of
national criminal laws but of internationally recognized norms relating to human
rights” (Principle 18). In this respect “States should consider incorporating into
the
national law norms proscribing abuses of power and providing remedies to
victims of
such abuses. In particular, such remedies should include restitution and/or
compensation, and necessary material, medical, psychological and social
assistance and
support” (Principle 19).
Lawyers 65
Implementation
3.11 The Declaration on the Protection of All Persons
from Enforced Disappearance, 1992
The Declaration on the Protection of All Persons from Enforced
Disappearance, 1992, provides that “no State shall practise, permit or tolerate
enforced
disappearances” (art. 2(1)) and that “each State shall take effective legislative,
administrative, judicial or other measures to prevent and terminate acts of
enforced
disappearance in any territory under its jurisdiction” (art. 3). It further provides
that “no
order or instruction of any public authority, civilian, military or other, may be
invoked
to justify an enforced disappearance” and that “any person receiving such an
order or
instruction shall have the right and duty not to obey it” (art. 6(1)). Furthermore,
“the
right to a prompt and effective judicial remedy as a means of determining the
whereabouts or state of health of persons deprived of their liberty and/or
identifying
the authority ordering or carrying out the deprivation of liberty is required to
prevent
enforced disappearances under all circumstances”, including situations where
the State
is facing “a threat of war, a state of war, internal political instability or any other
public
emergency” (art. 9(1) read in conjunction with art. 7; emphasis added). Such
crisis
situations cannot in any circumstances be invoked to justify disappearances (art.
7).
3.12 The Declaration on the Right and Responsibility
of Individuals, Groups and Organs of Society to
Promote and Protect Universally Recognized
Human Rights and Fundamental Freedoms
(“The Declaration on Human Rights Defenders”),
1998
The Declaration on the Right and Responsibility of Individuals, Groups and
Organs of Society to Promote and Protect Universally Recognized Human Rights
and
Fundamental Freedoms, 1998, the so-called Declaration on Human Rights
Defenders,
was elaborated over a 13-year period, and is of particular significance in that it
underscores the right of everyone, “individually and in association with others, to
promote and to strive for the protection and realization of human rights and
fundamental freedoms at the national and international levels” (art. 1). It
underlines
States’ “prime responsibility and duty to protect, promote and implement all
human
rights” (art. 2), and inter alia defines existing norms concerning the right “to
participate
in peaceful activities against violations of human rights and fundamental
freedoms”
(art. 12(1)). Each person has, moreover, a right “to be protected effectively
under
national law in reacting against or opposing, through peaceful means, activities
and
acts, including those by omission, attributable to States that result in violations
of
human rights and fundamental freedoms, as well as acts of violence perpetrated
by
groups or individuals that affect the enjoyment” of those rights and freedoms
(Art.
12(3); emphasis added). By resolution 2000/61, the United Nations Commission
on
Human Rights decided to request the Secretary-General to appoint a special
representative to “report on the situation of human rights defenders in all parts
of the
world and on possible means to enhance their protection in full compliance with
the
Declaration” (operative paragraph 3).
and Lawyers
Implementation
4. Instruments adopted by the

United Nations Congress on the
Prevention of Crime and the
Treatment of Offenders
Interpretative guidance as to the meaning of international legal standards can
also be sought in the following non-binding instruments which were adopted by
the
various United Nations Congresses on the Prevention of Crime and the
Treatment of
Offenders:
_ Standard Minimum Rules for the Treatment of Prisoners, 1955;
_ Basic Principles on the Independence of the Judiciary, 1985;
_ Basic Principles on the Use of Force and Firearms by Law Enforcement Officials,
1990;
_ Basic Principles on the Role of Lawyers, 1990; and
_ Guidelines on the Role of Prosecutors, 1990.
However, since these instruments will be examined in some depth in other
chapters of this Manual, they will not be dealt with further in this chapter.
5. United Nations
Extra-Conventional Mechanisms
for Human Rights Monitoring
In addition to the international treaty mechanisms, the United Nations has
established what are referred to as “special procedures” to deal with especially
serious
human rights violations and to review petitions from individuals and NGOs. These
procedures, which are established within the framework of the United Nations
Commission on Human Rights, are aimed at establishing constructive
cooperation with
the Governments concerned in order to redress violations of human rights. There
are
basically two categories, namely, the thematic and country procedures on the
one hand,
and the 1503 procedure on the other.
Lawyers 67
Implementation
5.1 Special procedures I: Thematic and country
mandates73
Over the past few decades the United Nations Commission on Human Rights
and the Economic and Social Council have established a number of extra-
conventional
mechanisms or special procedures, which are created neither by the Charter of
the United
Nations nor by a treaty. These extra-conventional mechanisms, which also
monitor the
enforcement of human rights standards, have been entrusted to working groups
of experts
acting in their individual capacity or individuals designated as special
rapporteurs, special
representatives or independent experts.
The mandate and tenure of the working groups, special rapporteurs,
independent experts or special representatives of the Secretary-General depend
on the
decision of the Commission on Human Rights or of the Economic and Social
Council.
In general, however, their mandate is to examine, monitor and publicly report
either on
the human rights situation in a specific country or territory – the so-called
country
mandates – or on specific types of human rights violations worldwide – the
thematic
mechanisms or mandates.
These mechanisms are of paramount importance for monitoring universal
human rights standards and address many of the most serious human rights
violations
in the world, such as extrajudicial, summary or arbitrary executions, enforced or
involuntary disappearances, arbitrary detention, internally displaced persons, the
independence of judges and lawyers, violence against women, the sale of
children, the
right to development, adequate housing, education, and human rights
defenders.
The central objective of all these special procedures is to improve the
implementation of international human rights standards at the national level.
However,
each special procedure has its own specific mandate, which has sometimes also
evolved
according to specific circumstances and needs.
These mechanisms base their activities on allegations of human rights
violations received from various sources, such as the victims or their relatives
and local
or international NGOs. Information of this kind may be submitted in various
forms,
such as letters and faxes, and may concern individual cases, as well as details of
situations of alleged human rights violations.
These special mechanisms submit well-founded cases of human rights
violations to the Governments concerned for clarification. The results are
subsequently
reflected in the public reports submitted by the mechanisms to the Commission
on
Human Rights and other competent United Nations organs. Moreover, whenever
the
information received attests to the imminence of a serious human rights
violation, such
as an extrajudicial execution or involuntary disappearance, the thematic or
country-specific mechanisms may address an urgent message to the
Governments
concerned requesting clarifications on the case and appealing to the
Government to
take the necessary steps to guarantee the rights of the alleged victim. They may
also
and Lawyers
Implementation
73The information in this section has been drawn partly from Human Rights: A Basic Handbook for UN Staff,
United Nations,
Office of the High Commissioner for Human Rights/United Nations Staff College Project, pp. 49-53.
request an immediate visit to the country concerned.74 The purpose of these
appeals is
to strengthen human rights protection in situations giving rise to immediate
concern;
and, as emphasized in a report on the rationalization of the work of the
Commission,
adopted by consensus by the Commission itself during its fifty-sixth session,
“Governments to which urgent appeals are addressed should understand the
gravity of
the concern that underlies these appeals and should respond as quickly as
possible”.75
These appeals are intended to be preventive in character and do not prejudge
the final
conclusion in the case concerned. Cases that are not clarified are made public
through
the report of the special mechanisms to the Commission on Human Rights or to
other
competent United Nations bodies.
5.2 Special procedures II: The 1503 complaints
procedure
In response to the large number of communications submitted to the United
Nations each year alleging the existence of gross and systematic violations of
human
rights, the Economic and Social Council has adopted a procedure for dealing with
such
communications. This is known as the 1503 procedure, pursuant to the adoption
of
resolution 1503 of 27 May 1970. However, although based on individual petitions
and
more comprehensive submissions by NGOs, it does not deal with individual cases
but
seeks to identify situations of grave violations of human rights
affecting large
numbers of people.
As from the year 2000, this confidential procedure, which originally
comprised three stages, will be composed of a two-stage procedure involving, in
the
first place, a Working Group on Communications comprising five independent
members of the Sub-Commission on the Promotion and Protection of Human
Rights,
as well as a Working Group on Situations consisting of five members of the
Commission on Human Rights nominated by the regional groups. The
Commission
itself then holds two closed sessions to consider the recommendations of the
Working
Groups on Situations.76 The 1503 dossier remains confidential at all times, unless
the
Government concerned has indicated that it wishes it to be made public.
Otherwise,
only the names of the countries having been examined under the 1503
procedure, and
of the countries no longer being dealt with thereunder, are made public by the
Chairperson of the Commission.77
Lawyers 69
Implementation
74See UN doc. E/CN.4/2000/112, Report of the Intersessional Open-ended Working Group on Enhancing the
Effectiveness of the
Mechanisms of the Commission on Human Rights, p. 8, para. 26.
75Ibid., p. 9, para. 28.
76For further details on the 1503 procedure as modified, see ibid., pp. 11-12, paras. 35-41.
77Ibid., p. 12, para. 41.
In addition to the international treaty-based mechanisms, the United
Nations has established special procedures aimed at dealing with
particularly serious human rights violations. These procedures are aimed
at creating cooperation with the Governments concerned for the purpose
of
redressing such violations.
These procedures consist of thematic and country procedures involving
working groups and special rapporteurs, special representatives or
independent experts. They also include the 1503 complaints procedure,
which seeks to identify situations of grave violations of human rights
affecting large numbers of people.
As can be seen from the basic information contained in this chapter,
international human rights treaties and numerous resolutions adopted by the
various
organs of the United Nations contain detailed standards for the protection of the
human person, including a variety of monitoring mechanisms to improve the
efficiency
of the actual implementation of these standards at the domestic level. The
examples to
be given in subsequent chapters will show that these legal instruments have in
fact
contributed to important legal developments for the purposes of enhancing the
protection of individuals. Naturally, the universal human rights standards
presented in
this chapter, as interpreted by the competent monitoring organs, also provide
indispensable guidance to the domestic legal professions in their own work to
protect
individuals at all times against various encroachments upon their rights.
Moreover, these universal standards are complemented by regional standards
adopted in Africa, the Americas and Europe. These various universal and regional
legal
standards often coexist at the domestic level, and, depending on the issues
involved,
domestic judges may have to consider both sets of rules and principles.
Finally, it is important to bear in mind that neither the universal nor the
regional law for the protection of the human person is static, but that they evolve
in step
with the new human needs that continue to emerge in society. Since this
adaptation is
often effected by means of interpretation, it is indispensable for judges,
prosecutors
and lawyers to keep themselves continuously informed about these legal
developments
so as to be able to contribute to maximizing the protection of the individual at
the
domestic level.
and Lawyers
Implementation
.........Chapter 3
THE MAJOR REGIONAL
HUMAN RIGHTS
INSTRUMENTS AND THE
MECHANISMS FOR THEIR
IMPLEMENTATION................
Learning Objectives
_ To familiarize participants with the major regional human rights
instruments and
their different modes of implementation;
_ To provide a basic understanding of how these legal resources can be
used by legal
practitioners, principally at the domestic level but also to some extent at
the regional
level, for the purpose of bringing complaints before the monitoring organs.
Questions
_ Have you, in the exercise of your professional activities as judges,
prosecutors or
lawyers, ever been faced with an accused person, defendant, respondent
or client
alleging violations of his or her rights under regional human rights law?
_ If so, how did you respond?
_ Were you aware that regional law for the protection of human rights
could provide
guidance for solving the problem concerned?
_ Were you aware that the alleged victim might ultimately bring his or her
grievances to
the attention of the regional commissions or courts?
_ If not, would such an awareness have changed your manner of
responding to the
alleged violations of his or her human rights?
_ Have you ever brought a case against your country, or some other
country, before a
regional organ on behalf of an alleged victim of a human rights violation?
_ If so, what was the outcome of the case?
_What was your experience generally of making such a complaint?
_Have you any experience of both the universal and regional systems? If
so, what
differences did you perceive?
Lawyers 71
1. Introduction
Beginning with the adoption of the European Convention on Human Rights
in 1950, the trend to elaborate regional standards continued with the adoption of
the
American Convention on Human Rights in 1967, which was subsequently
followed by
the African Charter on Human and Peoples’ Rights, adopted in 1981. Various
other
regional treaties have been elaborated in an effort to render the protection not
only of
civil and political rights, but also of economic, social and cultural rights, more
efficient.
In this chapter a presentation will be given of some of the major regional human
rights
treaties existing in Africa, the Americas and Europe. However, given that these
systems
for the protection of the human person have been dealt with in depth elsewhere,
the
present Manual will limit itself to describing their major features.
2. African Human Rights Treaties
and their Implementation
2.1 The African Charter on Human and Peoples’
Rights, 1981
The adoption of the African Charter on Human and Peoples’ Rights in 1981
was the beginning of a new era in the field of human rights in Africa.1 It entered
into
force on 21 October 1986, and as of 29 April 2002 had 53 States parties.
Although strongly inspired by the Universal Declaration of Human Rights, the
two International Covenants on human rights and the regional human rights
conventions, the African Charter reflects a high degree of specificity due in
particular to
the African conception of the term “right” and the place it accords to the
responsibilities
of human beings.2 The Charter contains a long list of rights, covering a wide
spectrum not
only of civil and political rights, but also of economic, social and cultural rights.
The African Charter further created the African Commission on Human and
Peoples’ Rights, “to promote human and peoples’ rights and ensure their
protection in
Africa” (art. 30). In 1998, the Protocol to the Charter on the Establishment of an
African Court of Human Rights was also adopted, but, as of 30 April 2002, this
Protocol had not yet entered into force, having secured only 5 of the required 15
ratifications. Lastly, work on the elaboration of an additional protocol concerning
the
rights of women in Africa is in progress within the framework of the African
Commission on Human and Peoples’ Rights, the Commission being assisted in
this
task by the Office of the United Nations High Commissioner for Human Rights.3
and Lawyers
Chapter 3 • The Major Regional Human Rights Instruments and the Mechanisms for Their
Implementation
1Fatsah Ouguergouz, La Charte africaine des droits de l’homme et des peuples – Une approche juridique
des droits de l’homme entre tradition et
modernité (Paris, Presses Universitaires de France, 1993 (Publications de l’Institut universitaire de hautes
études internationales,
Genève)), p. xxv.
2Keba Mbaye, Les droits de l’homme en Afrique (Paris, Editions A. Pedone/Commission Internationale de
Juristes, 1992), p. 161.
3See Mutoy Mubiala, “Le Projet du Protocole à la Charte Africaine des Droits de l’Homme et des Peuples
relatif aux Droits de la
Femme en Afrique”, in Human Rights, Spring 2000 (OUNHCHR review), pp. 23-27.
The States parties to the Charter “shall recognize the rights, duties and
freedoms enshrined [therein] and shall undertake to adopt legislative or other
measures
to give effect to them” (art. 1).
It is further provided that they “shall have the duty to promote and ensure
through teaching, education and publication, the respect of the rights and
freedoms
contained in the present Charter, and to see to it that these freedoms and rights
as well
as corresponding obligations and duties are understood” (art. 25). Moreover, the
States
parties “shall have the duty to guarantee the independence of the Courts and
shall allow
the establishment and improvement of appropriate national institutions
entrusted with
the promotion and protection of the rights and freedoms guaranteed by the ...
Charter”
(art. 26). These two latter provisions thus emphasize the need for education,
information and an independent administration of justice in order to ensure
the
effective protection of human rights.
Lastly, several provisions of the Charter are also couched in the form of duties
of the States parties to ensure certain rights, such as, for instance, the
“promotion and
protection of morals and traditional values recognized by the community”(art.
17(3))
and the right to development (art. 22(2)).
2.1.2 The individual and collective rights recognized
The African Charter on Human and Peoples’ Rights recognizes the following
civil, political, economic, social and cultural rights of individual human beings, in
particular:
_ the right to freedom from discrimination on any grounds in the enjoyment of
the
rights and freedoms guaranteed in the Charter – art. 2;
_ the right to equality before the law and to equal protection of the law – art. 3;
_ the right to respect for one’s life and personal integrity – art. 4;
_ the right to respect for one’s inherent dignity as a human being, including
freedom
from slavery, the slave trade, torture, cruel, inhuman or degrading punishment
and
treatment – art. 5;
_ the right to liberty and to the security of one’s person; freedom from arbitrary
arrest
or detention – art. 6;
_ the right to have one’s cause heard, and “the right to an appeal to competent
national organs against acts of violating” one’s human rights; the right to be
presumed innocent until proved guilty by a competent court or tribunal; the right
to
defence; and the right to be tried within a reasonable time by an impartial
tribunal;
freedom from ex post facto laws – art. 7;
_ freedom of conscience, the profession and free practice of religion – art. 8;
_ the right to receive information and the right to express and disseminate one’s
opinions “within the law” – art. 9;
_ the right to freedom of association (art. 10) and the right to assemble freely
with
others – art. 11;
Lawyers 73
Implementation
_ the right to freedom of movement and residence within the borders of a State;
the
right to leave any country including one’s own and to return to one’s country; the
right to asylum in case of persecution; prohibition of mass expulsions – art. 12;
_ the right to participate freely in the government of one’s country, either
directly or
through freely chosen representatives; the right to equal access to the public
service
of one’s country and to access to public property and services – art. 13;
_ the right to property – art. 14;
_ the right to work and the right to equal pay for equal work – art. 15;
_ the right to enjoy the best attainable state of physical and mental health – art.
16;
_ the right to education, and freely to take part in the cultural life of one’s
country –
art. 17;
_ the right of the family, the aged and the disabled to special measures of
protection –
art. 18.
Next, the African Charter recognizes the following rights of peoples, namely:
_ the right of peoples to equality – art. 19;
_ the right to existence of all peoples, including the right to self-determination;
the
right of all peoples to assistance in their liberation struggle against foreign
domination, “be it political, economic or cultural” – art. 20;
_ the right of all peoples freely to dispose of their wealth and natural resources –
art.
21;
_ the right of all peoples to their economic, social and cultural development – art.
22;
_ the right of all peoples to national and international peace and security – art.
23;
_ the right of all peoples “to a general satisfactory environment favourable to
their
development” – art. 24.
2.1.3 The individual duties
Without providing any details, article 27(1) deals with individual duties toward
certain groups by stipulating, in general terms only, that “every individual shall
have
duties towards his family and society, the State and other legally recognized
communities and the international community”. Next, article 28 concerns the
individual’s duty towards other individuals, providing that “every individual shall
have the
duty to respect and consider his fellow beings without discrimination, and to
maintain
relations aimed at promoting, safeguarding and reinforcing mutual respect and
tolerance”. Lastly, article 29 enumerates several other specific individual duties,
such as
the duties:
_ to preserve the harmonious development of the family – art. 29(1);
_ to serve one’s national community – art. 29(2);
_ not to compromise the security of the State – art. 29(3);
_ to preserve and strengthen the social and national solidarity – art. 29(4);
_ to preserve and strengthen the national independence and territorial integrity
of
one’s country – art. 29(5);
_ to work to the best of one’s abilities and competence, and to pay taxes – art.
29(6);
and Lawyers
Implementation
_ to preserve and strengthen positive African cultural values – art. 29(7); and,
finally,
_ the duty to contribute to the best of one’s abilities to the promotion and
achievement of African unity – art. 29(8).
The exercise of many of the rights and freedoms guaranteed by the African
Charter is conditioned by limitation provisions, which in some cases indicate
specific
aims for which limitations might be imposed, but which in others simply refer
back to
the conditions laid down in national law. Article 12(2) thus provides that the right
to
leave any country including one’s own, and to return to one’s own country, “may
only
be subject to restrictions provided for by law for the protection of national
security, law
and order, public health or morality”. However, everyone has the right to free
association “provided that he abides by the law” (art. 10), without there being
any
indication as to the grounds the national law can legitimately invoke to limit that
freedom of association.
2.1.5 Derogations from legal obligations
Unlike the International Covenant on Civil and Political Rights and the
American and European Conventions on Human Rights, the African Charter does
not
provide for any right of derogation for the States parties in public emergencies.
As
indicated in Chapter 1, and, as will be further shown in Chapter 16, this absence
has
been interpreted by the African Commission on Human and Peoples’ Rights to
mean
that derogations are not permissible under the African Charter.4
The African Charter on Human and Peoples’ Rights is specific in that it
protects not only rights of individual human beings but also rights
of peoples.
The Charter also emphasizes the individual’s duties towards certain
groups and other individuals.
While some provisions of the African Charter allow for limitations to
be imposed on the exercise of the rights guaranteed, no derogations
are ever allowed from the obligations incurred under this treaty.
The African Commission on Human and Peoples’ Rights consists of eleven
members serving in their individual capacity (art. 31). It has the twofold function,
first,
of promoting human and peoples’ rights, and, second, of protecting these rights
(art. 30),
including the right to receive communications both from States and from other
sources.
Lawyers 75
Implementation
4ACHPR, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, No, 74/92, decision taken at
the 18th ordinary session, October,
1995, para. 21; for the text see the following web site: http://www1.umn.edu/humanrts/africa/comcases/74-
92.html.
As to the function of promoting human and peoples’ rights, the Commission
shall, in the first place, in particular, collect documents, undertake studies and
researches on African problems, organize conferences, encourage domestic
human
rights institutions, and, “should the case arise, give its views or make
recommendations
to Governments”; second, it shall “formulate and lay down principles and rules
aimed
at solving legal problems relating to human and peoples’ rights”; lastly, it shall
cooperate with other African and international institutions concerned with the
promotion and protection of these rights (art. 45(1)).
With regard to the Commission’s function of ensuring “the protection of
human and peoples’ rights under conditions laid down by the ... Charter” (art.
45(2)),
the Commission not only has competence to receive communications from
States and
other sources, but is also authorized to “interpret all the provisions of the ...
Charter at
the request of a State Party, an institution of the OAU or an African Organization
recognized by the OAU” (art. 45(3)).
_ inter-State communications: if a State party “has good reasons to believe
that
another State Party to this Charter has violated the provisions” thereof, “it may
draw, by written communication, the attention of that State to the matter” (art.
47).
The State to which the communication is addressed has three months from the
receipt of the communication to submit a written explanation. If the matter has
not
been “settled to the satisfaction of the two States involved through bilateral
negotiation or by any other peaceful procedure”, either State can bring it to the
attention of the Commission (art. 48). Notwithstanding these provisions, a State
party can refer the matter directly to the Commission (art. 49). However, the
Commission can only deal with the matter after all domestic remedies have been
exhausted in the case, “unless ... the procedure of achieving these remedies
would
be unduly prolonged” (art. 50). The States concerned may be represented before
the
Commission and submit written and oral statements (art. 51(2)). When in
possession of all necessary information and “after having tried all appropriate
means to reach an amicable solution based on the respect of Human and
Peoples’
Rights”, the Commission shall prepare a report “stating the facts and its
findings”,
which shall be sent to the States concerned and to the Assembly of Heads of
State
and Government (art. 52). In transmitting its report, the Commission may make
to
the aforesaid Assembly “such recommendations as it deems useful” (art. 53).
_ communications from sources other than those of States parties: the
Charter
does not specify whether the Commission is competent to deal with individual
complaints, as such, but merely provides that, before each session of the
Commission, its Secretary “shall make a list of the communications other than
those
of States Parties ... and transmit them to the members of the Commission, who
shall
indicate which communication should be considered by the Commission” (art.
55(1)). However, certain criteria have to be fulfilled before the Commission can
consider the case. Thus: (1) the communication must indicate the author; (2) it
must
be compatible both with the Charter of the OAU and with the African Charter on
Human and Peoples’ Rights; (3) it must not be written “in disparaging or insulting
language”; (4) it must not be “based exclusively on news disseminated through
the
mass media”; (5) it must be submitted only after all domestic remedies have
been
exhausted, “unless it is obvious that this procedure is unduly prolonged”; (6) it
must
be submitted “within a reasonable period from the time local remedies are
and Lawyers
Implementation
exhausted”; and, finally (7) the communications must not “deal with cases which
have been settled by these States involved in accordance with the principles of
the
Charter of the United Nations”, the Charter of the OAU or the African Charter on
Human and Peoples’ Rights (art. 56). There is no specific provision in the Charter
allowing individuals or groups of individuals to appear in person before the
Commission. Before a substantive consideration is made of a communication, it
must be brought to the attention of the State concerned (art. 57). Subsequently,
“when it appears after deliberations of the Commission that one or more
communications apparently relate to special cases which reveal the existence of
a
series of serious or massive violations of human and peoples’ rights, the
Commission shall draw the attention of the Assembly of Heads of State and
Government to these special cases”; the latter may then request the
Commission
“to undertake an in-depth study of these cases and make a factual report,
accompanied by its findings and recommendations” (art. 58(1) and (2)). Lastly,
the
Charter provides a procedure for emergency cases which shall be submitted by
the
Commission to the Chairman of the Assembly, “who may request an in-depth
study” (art. 58(3)).
_ periodic reports: the States parties to the Charter also undertake to submit,
every
two years, “ a report on the legislative or other measures taken with a view to
giving
effect to” the terms of the Charter (art. 62). Although the Charter provides no
explicit procedure for the examination of these periodic reports, the African
Commission on Human and Peoples’ Rights has proceeded to examine these
reports in public sessions.5
The African Commission on Human and Peoples’ Rights is, in
particular, competent to:
_ promote human rights by collecting documents, undertaking studies,
disseminating information, making recommendations, formulating
rules and principles and cooperating with other institutions;
_ ensure the protection of human and peoples’ rights by receiving
(a) inter-State communications; (b) communications other than those
of the States parties; and (c) periodic reports from the States parties.
2.2 The African Charter on the Rights and Welfare of
the Child, 1990
The African Charter on the Rights and Welfare of the Child6 was adopted in
1990, and entered into force on 29 November 1999. As of 31 May 2000, it had 20
ratifications. The Charter spells out a long list of rights of the child and
establishes an
African Committee of Experts on the Rights and Welfare of the Child.
Lawyers 77
Implementation
5See e.g. as to report of Ghana, The African Commission on Human and Peoples’ Rights Examination of
State Reports, 14th Session, December
1993: Ghana, to be found on the following web site: http://www1.umn.edu/humanrts/achpr/sess14-
complete.htm.
6OAU doc. CAB/LEG/24.9/49 (1990).
The States parties “shall recognize the rights, freedoms and duties enshrined
in [the] Charter and shall undertake to take the necessary steps, in accordance
with their
constitutional processes and with the provisions of the ... Charter, to adopt such
legislative or other measures as may be necessary to give effect to the
provisions”
thereof (art. 1(1)). It is noteworthy that “any custom, tradition, cultural or
religious
practice that is inconsistent with the rights, duties and obligations contained in
the ...
Charter shall to the extent of such inconsistency be discouraged” (art. 1(3)).
For the purposes of the African Charter on the Rights and Welfare of the
Child, a child means every human being below the age of 18 (art. 2), and, in all
actions
concerning the child undertaken by any person or authority, the best interests
of the
child shall be the primary consideration (art. 4(1)). The Charter further
guarantees the
following rights and principles, in particular:
_ the principle of non-discrimination – art. 3;
_ the right to survival and development, including the right to life and prohibition
of
the death penalty – art. 5;
_ the right to a name and a nationality – art. 6;
_ the right to freedom of expression – art. 7;
_ the right to freedom of association and of peaceful assembly – art. 8;
_ the right to freedom of thought, conscience and religion – art. 9;
_ the right to protection of one’s privacy, family, home and correspondence – art.
10;
_ the right to education – art. 11;
_ the right to leisure, recreation and cultural activities – art. 12;
_ the right to special protection of handicapped children – art. 13;
_ the right to health and health services – art. 14;
_ the right to protection against economic exploitation and hazardous work – art.
15;
_ the right to protection against child abuse and torture – art. 16;
_ the administration of juvenile justice: the right to special treatment of young
offenders – art. 17;
_ the right to protection of the family unit – art. 18;
_ the right to parental care and protection -. art. 19;
_ parental responsibilities – art. 20; and
_ the right to protection against harmful social and cultural practices – art. 21.
The African Charter further contains provisions concerning:
_ armed conflicts – art. 22;
_ refugee children – art. 23;
_ adoption – art. 24;
_ separation from parents – art. 25;
and Lawyers
Implementation
_ protection against apartheid and discrimination – art. 26;
_ sexual exploitation – art. 27;
_ drug abuse – art. 28;
_ the sale, trafficking and abduction of children – art. 29; as well as
_ the children of imprisoned mothers – art. 30.
2.2.3 The child’s duties
According to article 31 of the Charter, “every child shall have responsibilities
towards his family and society, the State and other legally recognized
communities and
the international community”. Such responsibilities include the duty to work for
the
cohesion of the family, to serve the national community, to preserve and
strengthen
social and national solidarity and to contribute to the promotion of African unity.
An African Committee of Experts on the Rights and Welfare of the Child
shall be established within the Organization in order to promote and protect the
rights
and welfare of the child (art. 32). It shall consist of eleven independent and
impartial
members serving in their individual capacity (art. 33).
The Committee shall, in the first place, promote and protect the rights
enshrined in the Charter and, second, monitor the implementation and ensure
protection of the rights concerned (art. 42). In carrying out the first part of its
mandate,
it shall, in particular, collect and document information, organize meetings, make
recommendations to Governments, formulate rules and principles aimed at
enhancing
the protection of the rights and welfare of the African child, and cooperate with
other
African regional and international institutions in the same field (art. 42(a)). It
may
interpret the terms of the Charter at the request, inter alia, of a State party or
institution
of the OAU (art. 42(c)). With respect to monitoring of implementation of the
Charter,
the latter provides for the following two procedures:
_ the reporting procedure: every State party undertakes to submit reports on
the
measures it has adopted to give effect to the provisions of the Charter within two
years of the entry into force of the Charter, and thereafter every three years (art.
43(1)). The Charter does not specify how the Committee shall examine these
reports;
_ the complaints procedure: the Committee may receive communications
from any
person, group or non-governmental organization (NGO) recognized either by the
OAU, a Member State or the United Nations relating to any matter covered by
the
Charter (art. 44).
Lastly, the Committee may resort to any “appropriate method” of
investigating any matter falling within the ambit of the Charter. It shall further
submit
regular reports on its activities to the Ordinary Session of the Assembly of Heads
of
State and Government every two years, a report that shall be published after
having
been considered by the Assembly (art. 45).
Lawyers 79
Implementation
The African Charter on the Rights and Welfare of the Child protects
numerous rights which have to be interpreted and applied in the best
interest of the child.
The African Committee of Experts on the Rights and Welfare of the
Child shall promote and protect the rights of the child.
The implementation mechanism consists of (a) a reporting procedure, and
(b) a complaints procedure.
3. American Human Rights Treaties
3.1 The American Convention on Human Rights,
1969, and its Protocols of 1988 and 1990
The American Convention on Human Rights, 1969,7 also commonly called
the Pact of San José, Costa Rica, since it was adopted in that capital city, entered
into
force on 18 July 1978 and, as of 9 April 2002, had 24 States parties, following the
denunciation of the treaty by Trinidad and Tobago on 26 May 1998.8 The
Convention
reinforced the Inter-American Commission on Human Rights, which since 1960
had
existed as “an autonomous entity of the Organization of American States”.9 It
became a
treaty-based organ which, together with the Inter-American Court of Human
Rights,
“shall have competence with respect to matters relating to the fulfilment of the
commitments made by the States Parties” to the Convention (art. 33).
In 1988, the General Assembly of the OAS further adopted the Additional
Protocol to the American Convention on Human Rights in the Area of Economic,
Social and Cultural Rights, also called the Protocol of San Salvador.10 This
Protocol
develops the provisions of article 26 of the Convention whereby the States
parties in
general terms “undertake to adopt measures, both internally and through
international
co-operation, ... with a view to achieving progressively, by legislation or other
appropriate means, the full realization of the rights implicit in the economic,
social,
educational, scientific, and cultural standards set forth in the Charter of the
Organization of American States as amended by the Protocol of Buenos Aires”.
This
Protocol entered into force on 16 November 1999 and, as of 9 April 2002, had 12
States
parties.11
and Lawyers
Implementation
7OAS Treaty Series, No. 36.
8See the following OAS web site: http://www.oas.org/juridico/english/Sigs/b-32.html.
9OAS doc. OEA/Ser.L/V/II.83, doc. 14, corr. 1, March 12, 1993, Annual Report of the Inter-American
Commission on Human Rights
1992-1993, p. 5.
11See: http://www.oas.org/juridico/english/Sigs/a-52.html.
Lastly, in 1990 the General Assembly also adopted the Protocol to the
American Convention on Human Rights to Abolish the Death Penalty, which
entered
into force on 28 August 1991.12 The States parties to this Protocol “shall not
apply the
death penalty in their territory to any person subject to their jurisdiction” (art. 1).
No
reservations may be made to this Protocol, although States parties may declare
at the
time of ratification or accession “that they reserve the right to apply the death
penalty in
wartime in accordance with international law, for extremely serious crimes of a
military
nature” (art. 2(1)). As of 9 April 2002 this Protocol had 8 States parties.13
The States parties to the American Convention on Human Rights “undertake
to respect the rights and freedoms recognized [therein] and to ensure to all
persons
subject to their jurisdiction the free and full exercise of those rights and
freedoms,
without any discrimination” on certain cited grounds (art. 1). These undertakings
have
been interpreted by the Inter-American Court of Human Rights in particular in
the case
of Velásquez, which concerned the disappearance and likely death of Mr.
Velásquez. In
the view of the Court the obligation to respect the rights and freedoms
recognized in
the Convention implies that
“the exercise of public authority has certain limits which derive from the
fact that human rights are inherent attributes of human dignity and are,
therefore, superior to the power of the State”.14
The obligation to “ensure ... the free and full exercise of those rights and
freedoms” thus
“implies the duty of the States Parties to organize the governmental
apparatus and, in general, all the structures through which public power is
exercised, so that they are capable of juridically ensuring the free and full
enjoyment of human rights. As a consequence of this obligation, the States
must prevent, investigate and punish any violation of the rights
recognized by the Convention and, moreover, if possible attempt to
restore the right violated and provide compensation as warranted for
damages resulting from the violation”.15
The Court added, however, that
“the obligation to ensure the free and full exercise of human rights is not
fulfilled by the existence of a legal system designed to make it possible to
comply with this obligation—it also requires the Government to conduct
itself so as to effectively ensure the free and full exercise of human
rights”.16
Lawyers 81
Implementation
13See http://www.oas.org/juridico/english/Sigs/a-53.html.
14I-A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1988, Series C, No. 4, p. 151, para. 165.
15Ibid., p. 152, para. 166; emphasis added.
16Ibid., para. 167.
As to the issue of prevention, the Court specified that
“the State has a legal duty to take reasonable steps to prevent human rights
violations and to use the means at its disposal to carry out a serious
investigation of violations committed within its jurisdiction, to identify
those responsible, to impose the appropriate punishment and to ensure the
victim adequate compensation”.17
This legal duty to prevent human rights violations would moreover include
“all those means of a legal, political, administrative and cultural nature that
promote the
protection of human rights and ensure that any violations are considered and
treated as
illegal acts, which, as such, may lead to the punishment of those responsible and
the
obligation to indemnify the victims for damages”.18
As defined by the Inter-American Court of Human Rights, the legal duty of
the States parties to the Convention to “respect” and to “ensure” is multi-
faceted and
goes to the very heart of the entire State structure, including the particular
conduct of
the Governments themselves. A more comprehensive analysis of States’ duties
to
prevent, investigate, punish and remedy human rights violations is contained in
Chapter 15 of this Manual.
The legal obligation to “ensure” the rights and freedoms contained in the
American Convention on Human Rights means that the States parties
must prevent, investigate and punish human rights violations and that
they must, if possible, restore the rights violated, and provide
compensation as warranted for damages.
As to the civil and political rights guaranteed by the Convention, they
comprise the following:
_ the right to juridical personality – art. 3;
_ the right to life, including careful regulation of the death penalty from an
abolitionist
perspective – art. 4;
_ the right to humane treatment, including freedom from torture and cruel,
inhuman
or degrading treatment or punishment – art. 5;
_ freedom from slavery, servitude, forced and compulsory labour – art. 6;
_ the right to personal liberty and security, including freedom from arbitrary
arrest or
detention – art. 7;
_ the right to a fair trial – art. 8;
_ the right to freedom from ex post facto laws – art. 9;
_ the right to compensation in the event of a miscarriage of justice – art. 10;
and Lawyers
Implementation
17Ibid., p. 155, para. 174.
18Ibid., para. 175.
_ the right to privacy – art. 11;
_ the right to freedom of conscience and religion – art. 12;
_ the right to freedom of thought and expression – art. 13;
_ the right of reply in case of dissemination of inaccurate and offensive
statements –
art. 14;
_ the right to peaceful assembly – art. 15;
_ the right to freedom of association – art. 16;
_ the right to marry freely and to found a family – art. 17;
_ the right to a name – art. 18;
_ the rights of the child – art. 19;
_ the right to a nationality – art. 20;
_ the right to property – art. 21;
_ the right to freedom of movement and residence – art. 22;
_ the right to participate in government – art. 23;
_ the right to equality before the law and equal protection of the law – art. 24;
_ the right to judicial protection – art. 25.
Apart from recognizing these civil and political rights, the American
Convention on Human Rights also contains an article whereby the States parties
in
general terms “undertake to adopt measures, both internally and through
international
co-operation, ... with a view to achieving progressively, by legislation or other
appropriate means, the full realization of the rights implicit in the economic,
social,
educational, scientific, and cultural standards set forth in the Charter of the
Organization of American States as amended by the Protocol of Buenos Aires”
(art.
26). As the title to this article indicates, it is more concerned with the
“Progressive
development” of these rights than with their immediate enforcement through
judicial
means. However, with the entry into force of the Additional Protocol to the
Convention in the Area of Economic, Social and Cultural Rights, these rights have
been
given a more detailed legal definition, although the “full observance” thereof is
still to
be achieved “progressively” (art. 1). The Additional Protocol recognizes the
following
economic, social and cultural rights:
_ the principle of non-discrimination in the exercise of the rights set forth in the
Protocol – art. 3;
_ the right to work – art. 6;
_ the right to just, equitable and satisfactory conditions of work – art. 7;
_ trade union rights – art. 8;
_ the right to social security – art. 9;
_ the right to health – art. 10;
_ the right to a healthy environment – art. 11;
_ the right to food – art. 12;
_ the right to education – art. 13;
_ the right to the benefits of culture – art. 14;
Lawyers 83
Implementation
_ the right to the formation and protection of families – art. 15;
_ the rights of children – art. 16;
_ the right of the elderly to protection – art. 17;
_ the right of the handicapped to protection – art. 18.
3.1.3 Permissible limitations on the exercise of rights19
The exercise of the following rights may be subjected to limitations if necessary
for specifically enumerated purposes: the right to manifest one’s religion and
beliefs
(art. 12(3)); the right to freedom of thought and expression (art. 13(2)); the right
to the
freedoms of assembly and of association (arts. 15, 16(2) and (3)); and the right
to
freedom of movement and residence, including the right to leave any country,
including
one’s own (art. 22(3)). Grounds which may justify limitations on the exercise of
rights
are, among others, the protection of public safety, health, morals, (public) order,
national security or the rights and freedoms of others (the legitimate reasons
vary
depending on the right protected). In addition, the law may, on certain specified
grounds, “regulate the exercise of the rights and opportunities” linked to the
right to
participate in government (art. 23(2)).
As to the principle of legality, all limitation provisions stipulate that the
limitations imposed must be prescribed by law, established by law, imposed in
conformity with the law, or pursuant to law. However, article 30 contains a
general
provision whereby restrictions on the exercise of rights foreseen in the
Convention
“may not be applied except in accordance with the laws enacted for reasons of
general
interest and in accordance with the purpose for which such restrictions have
been
established”.
The Inter-American Court of Human Rights has analysed the term “laws”
found in article 30 in an Advisory Opinion, in which it held that the meaning of
this
word “in the context of a system for the protection of human rights cannot be
dissociated from the nature and origin of that system”, which
“is in effect based on the affirmation of the existence of certain inviolable
attributes of the individual that cannot be legitimately restricted through
the exercise of governmental power”.20
In the view of the Court, it was therefore
“essential that State actions affecting basic rights not be left to the
discretion of the government but, rather, that they be surrounded by a set
of guarantees designed to ensure that the inviolable attributes of the
individual not be impaired”.21
and Lawyers
Implementation
19For further information on limitations on the exercise of rights, see in particular Chapter 12 of this Manual
concerning “Some
Other Key Rights: The Freedoms of Thought, Conscience, Religion, Opinion, Expression, Association and
Assembly”.
20I-A Court HR, The Word “Laws” in Article 30 of the American Convention on Human Rights, Advisory
Opinion OC-6/86 of May 9, 1986,
Series A, No. 6, p. 29, para. 21.
21Ibid., pp. 29-30, para. 22.
The Court then added that perhaps “the most important of these guarantees is
that restrictions to basic rights only be established by a law passed by the
Legislature in
accordance with the Constitution”.22 The term “laws” in article 30 thus means
“formal
law”, namely,
“a legal norm passed by the legislature and promulgated by the Executive
Branch, pursuant to the procedure set out in the domestic law of each
State”.23
However, article 30 also links the term “laws” to the “general interest”, which
means that “they must have been adopted for the ‘general welfare” as referred
to in
article 32(2) of the Convention, a concept, which, in the view of the Court,
“must be interpreted as an integral element of public order (ordre public)
in democratic States, the main purpose of which is ‘the protection of the
essential rights of man and the creation of circumstances that will permit
him to achieve spiritual and material progress and attain happiness’”.24
As subsequently reaffirmed in its Advisory Opinion on Habeas Corpus, there
exists, consequently, “an inseparable bond between the principle of legality,
democratic
institutions and the rule of law”.25
With regard to the principle of a democratic society, only the limitation
provisions concerning the exercise of the right to assembly and the right to
freedom of
association provide that the limitations must also be “necessary in a
democratic
society” (emphasis added). However, as emphasized by the Inter-American
Court of
Human Rights in its Advisory Opinion on Compulsory Membership in an
Association
Prescribed by Law for the Practice of Journalism regarding the right to freedom of
expression
in article 13, the interpretation of the provisions contained in the American
Convention
on Human Rights is also conditioned by the restrictions laid down in particular in
articles 29(c) and 32(2),26 which respectively provide that “no provision of this
Convention shall be interpreted as ... (c) precluding other rights or guarantees
that are
inherent in the human personality or derived from representative
democracy as a
form of government”(art. 29(c); emphasis added); and that “the rights of each
person
are limited by the rights of others, by the security of all, and by the just
demands of the
general welfare, in a democratic society” (art. 32(2), emphasis added).
These articles, in particular, define “the context within which the restrictions
permitted under Article 13(2) must be interpreted”; and, in the view of the Court,
it
followed
Lawyers 85
Implementation
22Ibid., at p. 30.
23Ibid., p. 32, para. 27.
24Ibid., p. 33, para. 29.
25I-A Court HR, Habeas Corpus in Emergency Situations (Art. 27(2), 25(1) and 7(6), Advisory Opinion OC-
8/87 of January 30, 1987,
26I-A Court HR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism
(Arts. 13 and 29 American
Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985, Series A, No. 5, p. 105,
para. 41.
“from the repeated reference to ‘democratic institutions’, ‘representative
democracy’ and ‘democratic society’ that the question whether a restriction
on freedom of expression imposed by a state is ‘necessary to ensure’ one of
the objectives listed in subparagraphs (a) or (b) must be judged by
reference to the legitimate needs of democratic societies and
institutions”.27
The Court concluded that, consequently,
“the just demands of democracy must ... guide the interpretation of the
Convention and, in particular, the interpretation of those provisions that
bear a critical relationship to the preservation and functioning of
democratic institutions”.28
To be lawful under the American Convention on Human Rights,
limitations on the exercise of rights must comply with:
_ the principle of legality, in that the restrictive measures must be
based in law;
_ the principle of a democratic society, in that the measure
imposed must be judged by reference to the legitimate needs of
democratic societies and institutions;
_ the principle of necessity/proportionality, in that the
interference with the exercise of the individual’s right must be
necessary in a democratic society for one or more of the specified
purposes.
With some modifications as compared to article 4 of the International
Covenant on Civil and Political Rights, article 27 of the American Convention on
Human Rights also foresees the possibility for the States parties to derogate
from the
obligations incurred under the Convention. Below is a brief survey of the
conditions
attached to this right, which will be dealt with in further detail in Chapter 16:
_ the condition of exceptional threat: a State party can only resort to
derogations
“in time of war, public danger, or other emergency that threatens the
independence
or security of a State Party” (art. 27(1)). This definition is thus worded differently
from that under article 4 of the International Covenant and article 15 of the
European Convention on Human Rights;
_ the condition of non-derogability of certain obligations: article 27(2) of
the
American Convention provides a long list of provisions from which no suspension
can ever be made: article 3 (right to juridical personality); article 4 (right to life);
article 5 (right to humane treatment); article 6 (freedom from slavery); article 9
and Lawyers
Implementation
28Ibid., p. 108, para. 44.
(freedom from ex post facto laws); article 12 (freedom of conscience and
religion);
article 17 (rights of the family); article 18 (right to a name); article 19 (rights of
the
child); article 20 (right to nationality); article 23 (right to participate in
government);
and “the judicial guarantees essential for the protection of such rights”
(emphasis added);29
_ the condition of strict necessity: a State party may only “take measures
derogating
from its obligations under the present Convention to the extent and for the
period
of time strictly required by the exigencies of the situation” (art. 27(1));
the
measures of derogation taken by the State party must not be “inconsistent with
its
other obligations under international law”, such as obligations incurred under
other
international treaties or customary international law (art. 27(1));
_ the condition of non-discrimination: the measures of derogation must “not
involve discrimination on the ground of race, colour, sex, language, religion, or
social origin” (art. 27(1)); and, finally,
_ the condition of international notification: in order to avail itself of the
right to
derogate under article 27(1), the State party must also comply with the
conditions in
article 27(3), whereby it “shall immediately inform the other States Parties,
through
the Secretary-General of the Organization of American States, of the provisions
the
application of which it has suspended, the reasons that gave rise to the
suspension,
and the date set for the termination” thereof.
When derogating from their obligations under article 27 of the American
Convention on Human Rights, States Parties must comply with:
_ the condition of exceptional threat;
_ the condition of non-derogability of certain obligations;
_ the condition of strict necessity;
_ the condition of consistency with other international obligations;
_ the condition of non-discrimination; and
_ the condition of international notification.

The inter-American system for the protection of human rights comprises, in
the first instance, the Inter-American Commission on Human Rights and, in the
second
instance, the Inter-American Court of Human Rights for those States parties
having
accepted its jurisdiction. In the present context the procedures concerned will be
explained in general terms only:
Lawyers 87
Implementation
29The words “judicial guarantees essential for the protection of such rights” have, inter alia, been
interpreted in two Advisory
Opinions by the Inter-American Court of Human Rights, which will be dealt with in further detail in Chapter
16.
_ the competence of the Inter-American Commission on Human Rights:
the
Inter-American Commission is composed of seven members elected in their
personal capacity (arts. 34 and 36(1)) whose main functions are to “promote
respect
for and defence of human rights” by, inter alia, (1) developing an awareness of
human rights in the Americas; (2) making recommendations to Governments of
the
member States, when it considers such action advisable; (3) preparing such
studies
and reports as it considers advisable in the performance of its duties; and, (4)
taking
action on petitions and other communications pursuant to its authority under the
Convention (art. 41(a), (b), (c) and (f)). The right of individual petition to the
Commission is mandatory under the Convention, according to which “any
person
or group of persons, or any non-governmental entity legally recognized in one or
more member States of the Organization [of American States] may lodge
petitions
... containing denunciations or complaints of violation of this Convention by a
State
Party” (art. 44). On the other hand, inter-State complaints require a specific
declaration whereby the State concerned recognizes the competence of the
Commission to examine communications brought against another State party
having made the same declaration (art. 45(1) and (2)).
The admission of an individual petition or inter-State communication submitted
to
the Commission is subject to several requirements, such as the exhaustion of
domestic remedies rule (art. 46(1)(a)). Moreover, the petition or communication
must be lodged within six months from the date on which the alleged victim was
notified of the final judgement, and the subject of the complaint must not be
pending in another international proceeding for settlement (art. 46(1)(b) and
(c)).
Individual petitions must of course also contain information such as the name,
address and signature of the alleged victim or his or her legal representative
(art.
46(1)(d)). The exhaustion of domestic remedies rule is not, however, applicable
(a)
where the domestic legislation “does not afford due process of law for the
protection of the right or rights that have allegedly been violated”; (b) where the
alleged victim has been denied access to domestic remedies; and (c) where
there has
been “unwarranted delay in rendering a final judgement” (art. 46(2)).
If a petition or communication does not fulfil these conditions or if, for instance, it
is “manifestly groundless”, the Commission declares the petition or
communication
concerned inadmissible (art. 47). Otherwise, it shall be declared admissible,
which
implies that the Commission will proceed to request more information from the
parties in order to be enabled to make a more in-depth analysis of the
complaints
(art. 48(1)(a)). It can also make an on-the-spot investigation and hear oral
statements
in addition to written submissions (art. 48(1)(d) and (e)). At this stage the
Commission can also declare the petition or communication inadmissible or out
of
order or unsubstantiated (art. 48(1)(c)). Alternatively, it will “place itself at the
disposal of the parties concerned with a view to reaching a friendly settlement of
the
matter on the basis of respect for the human rights recognized in this
Convention”
(art. 48(1)(f)). If a settlement is not reached, the Commission will “draw up a
report
setting forth the facts and stating its conclusions”, a report that will be submitted
to
the States parties, “which shall not be at liberty to publish it” (art. 50(1) and (2)).
If,
after a prescribed period, the matter has not been settled or submitted to the
Court,
the Commission may “set forth its opinion and conclusions concerning the
question submitted for its consideration” and may in cases where the State
and Lawyers
Implementation
concerned fails to take “adequate measures”, ultimately decide to publish its
report
(art. 51).
With regard to those OAS Member States which have not yet ratified the
American
Convention on Human Rights, the Commission is competent to receive petitions
alleging violations of the American Declaration on the Rights and Duties of
Man.30
Another interesting aspect of the Commission’s powers is its competence to
request
advisory opinions from the Inter-American Court of Human Rights (art. 64). The
important Advisory Opinion on Habeas Corpus in Emergency Situations was thus
given
by the Court following a request by the Commission.
_ the competence of the Inter-American Court of Human Rights: as of 16
April
2001, the compulsory jurisdiction of the Court had been accepted by 21 States.31
The Court consists of seven judges elected in their individual capacity (art. 52). It
has its Secretariat in San José, Costa Rica. Before the Court can hear a case, the
procedure before the Commission must be completed (art. 61(2)). “In cases of
extreme gravity and urgency”, the Court “shall adopt such provisional measures
as it
deems pertinent”, and, at the request of the Commission, it may in fact also do
this
with respect to cases not yet submitted to it (art. 63(2)). The Court’s judgments
are
final and the States parties undertake to comply with the terms thereof “in any
case
to which they are parties” (arts. 67 and 68(1)).
The enforcement mechanism under the Additional Protocol in the Area of
Economic, Social and Cultural Rights differs from the procedures under the
Convention in that the States parties only undertake “to submit periodic reports
on the
progressive measures they have taken to ensure due respect for the rights set
forth”
therein (art. 19(1) of the Protocol). Only with regard to the right to organize and
join
trade unions (art. 8(a)) and the right to education (art. 13) does the Protocol
provide for
application of the complaints procedure before the Commission and Court, and
then
only in cases where the alleged violation is “directly attributable” to a State
party (art.
19(6)).
Both the Commission and the Court have dealt with a considerable number of
cases, which can be found in their respective annual reports. The annual report
of the
Inter-American Commission on Human Rights also provides important
information
about the Commission’s activities in general, which reach far beyond the
framework of
the American Convention on Human Rights.
Lawyers 89
Implementation
30See article 51 of the Regulations of the Inter-American Commission on Human Rights, approved by the
Commission at its 660th
Meeting, 49th Session, held on 8 April 1980, and modified at its 70th Session, at its 938th meeting, held on 29
June 1987, published in
OAS doc. OEA/Ser.L/V/II.82, doc. 6, rev. 1, July 1, 1992, Basic Documents Pertaining to Human Rights in the
Inter-American System, p. 121.
31See OAS doc. OEA/Ser.L/V/II.111, doc. 20 rev., Annual Report of the Inter-American Commission on
Human Rights 2000, Annex 1;
the text of this report can be found at the following web site:
http://www.cidh.oas.org/annualrep/2000eng/TOC.htm.
The Inter-American Commission on Human Rights is
competent to receive petitions concerning alleged human rights violations:
_ from any person or group of persons, or any legally recognized
non-governmental entity; this competence is mandatory (art. 44);
_ from one State party against another State party, if such competence
has been recognized (art. 45).
The Inter-American Court of Human Rights is competent to
examine cases submitted to it by the States parties and the Commission
provided that these cases have first been considered by the Commission
(art. 61).
3.2 The Inter-American Convention to Prevent and
Punish Torture, 1985
The Inter-American Convention to Prevent and Punish Torture, 1985,
entered into force on 28 February 1987, and as of 9 April 2002 had 16 States
parties.32
3.2.1 The scope of the Convention
According to the Convention, “torture shall be understood to be any act
intentionally performed whereby physical or mental pain or suffering is inflicted
on a
person for purposes of criminal investigation, as a means of intimidation, as
personal
punishment, as a preventive measure, as a penalty, or for any other purpose.
Torture
shall also be understood to be the use of methods upon a person intended to
obliterate
the personality of the victim or to diminish his physical or mental capacities,
even if
they do not cause physical pain or mental anguish.” (art. 2).
The Convention further defines the field of personal responsibility for those
committing, instigating or inducing torture or who have failed to prevent it
although
being able to do so (art. 3). As in the case of the United Nations Convention
against
Torture, “the existence of circumstances such as a state of war, threat of war,
state of
siege or of emergency, domestic disturbance or strife, suspension of
constitutional
guarantees, domestic political instability, or other public emergencies or
disasters shall
not be invoked or admitted as justification for the crime of torture” (art. 5).
Furthermore, nor can “the dangerous character of the detainee or prisoner”
justify the
resort to torture (art. 5).
The Convention provides that “the States Parties shall take effective measures
to prevent and punish torture within their jurisdiction”, and “shall ensure that all
acts of
torture and attempts to commit torture are offences under their criminal law”
(art. 6).
The Convention further contains provisions, inter alia, with regard to the training
of
and Lawyers
Implementation
32OAS, Treaty Series, No. 67; for the ratifications see http://www.oas.org/juridico/english/Sigs/a-51.html.
police officers (art. 7), impartial investigations of alleged torture (art. 8), the duty
to
establish jurisdiction over the crime of torture in certain cases (art. 12), and
extradition
(arts. 13-14).
Unlike the United Nations and European torture conventions, the
Inter-American Convention does not provide for any specific implementation
mechanism. However, under its article 17, “the States Parties shall inform the
Inter-American Commission on Human Rights of any legislative, judicial,
administrative, or other measures they adopt in application of this Convention”;
it is
subsequently for the Commission to “endeavour in its annual report to analyze
the
existing situation in the member States of the Organization of American States in
regard to the prevention and elimination of torture” (art. 17). Thus, the
Convention
does not foresee any possibility for the Commission to make any on-the-spot
investigation in a country where it has reason to believe that torture is being
practised.
However, the Commission may still be able to make such visits, with the
agreement of
the State concerned, by invoking the general field of competence accorded to it
under
the Charter of the OAS.
Under the Inter-American Convention to Prevent and Punish Torture,
the States parties must take effective measures to prevent and punish
torture within their jurisdiction.
As is confirmed by the Convention, the right not to be tortured is
non-derogable and no emergency situation of any kind can justify acts of
torture.
3.3 The Inter-American Convention on Forced
Disappearance of Persons, 1994
The Inter-American Convention on Forced Disappearance of Persons was
adopted by the General Assembly of the OAS in 1994 and entered into force on
28
March 1996. As of 9 April 2002 it had ten States parties.33 This Convention was
elaborated in response to the considerable wave of enforced or involuntary
disappearances that had occurred in many parts of the Americas in the 1970s
and the
1980s in particular.
As defined in the Convention, “forced disappearance is considered to be the
act of depriving a person or persons of his or their freedom, in whatever way,
perpetrated by agents of the state or by persons or groups of persons acting
with the
authorization, support, or acquiescence of the state, followed by an absence of
information or a refusal to acknowledge that deprivation of freedom or to give
Lawyers 91
Implementation
information on the whereabouts of that person, thereby impeding his or her
recourse to
the applicable legal remedies and procedural guarantees” (art. II).
The States parties undertake, in particular, not to practise, permit or tolerate
the forced disappearance of persons, even in states of emergency or suspension
of
individual guarantees; to punish within their jurisdictions those persons who
commit or
attempt to commit the crime of forced disappearance of persons and their
accomplices
and accessories; to cooperate with one another in helping to prevent, punish and
eliminate the forced disappearance of persons; and to take legislative,
administrative,
judicial, and any other measures necessary to comply with the commitments
undertaken in the Convention (art. I; for further details as to the duty to take
legislative
measures, see also art. III).
The Convention further regulates the duty to establish jurisdiction over cases
involving the forced disappearance of persons (art. IV), and provides that such
cases
shall not be considered political offences for purposes of extradition but shall be
deemed extraditable offences (art. V). Moreover, “criminal prosecution for the
forced
disappearance of persons and the penalty judicially imposed on its perpetrator
shall not
be subject to statutes of limitations”, unless there is a norm of a fundamental
character
preventing the application of this rule; in the latter case, however, “the period of
limitation shall be equal to that which applies to the gravest crime in the
domestic laws
of the ... State Party” (art. VII). Quite significantly, persons alleged to be
responsible for
the acts constituting the offence of forced disappearance of persons “may be
tried only
in the competent jurisdictions of ordinary law in each State, to the exclusion of
all
other special jurisdictions, particularly military jurisdictions” (art. IX;
emphasis
added).
As in the case of the torture conventions, exceptional circumstances such as a
state of war or any other public emergency cannot be invoked to justify the
forced
disappearance of persons; in such cases, “the right to expeditious and effective
judicial
procedures and recourse shall be retained as a means of determining the
whereabouts
or state of health of a person who has been deprived of freedom, or of
identifying the
official who ordered or carried out such deprivation of freedom”. In connection
with
such procedures, “the competent judicial authorities shall have free and
immediate
access to all detention centres and to each of their units, and to all places where
there is
reason to believe the disappeared person might be found, including places that
are
subject to military jurisdiction” (art. X).
The Convention provides that “the processing of petitions or
communications presented to the Inter-American Commission on Human Rights
alleging the forced disappearance of persons shall be subject to the procedures
established in the American Convention on Human Rights and to the Statute and
Regulations of the ... Commission ... and to the Statute and Rules of Procedure of
the
Inter-American Court of Human Rights, including the provisions on precautionary
measures” (art. XIII). An urgent procedure is also provided for cases where the
and Lawyers
Implementation
Inter-American Commission on Human Rights receives a petition or
communication
concerning an alleged forced disappearance, requiring its Executive Secretariat
to
“urgently and confidentially address the respective Government” with a request
for
information as to the whereabouts of the person concerned (art. XIV).
The Inter-American Convention on the Forced Disappearance of Persons
is a reaffirmation that the forced disappearance of persons is an act
violating international human rights law. The forced disappearance of
persons cannot be justified in any circumstances, not even in emergency
situations.
Persons accused of being involved in the forced disappearance of persons
shall only be tried by ordinary courts of law. They may not be tried by
special jurisdictions.
3.4 The Inter-American Convention on the
Prevention, Punishment and Eradication of
Violence against Women, 1994
The Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women, also called “Convention of Belém do
Pará”,
was adopted in 1994 by the General Assembly of the OAS and entered into force
on 5
March 1995. As of 9 April 2002 it had been ratified by 31 countries.34 This
Convention
is the only international treaty that exclusively aims at the elimination of gender-
based
violence.
For the purposes of the Convention, “violence against women shall be
understood as any act or conduct, based on gender, which causes death or
physical,
sexual or psychological harm or suffering to women, whether in the public or the
private sphere” (art. 1). As further specified, violence against women shall, inter
alia,
“be understood to include physical, sexual and psychological violence”,
irrespective of
whether that violence occurs within the family or domestic unit or within any
other
interpersonal relationship, or in the community, or is perpetrated or condoned by
the
State or its agents regardless of where it occurs (art. 2(a)-(c)). The scope of the
application is thus comprehensive and encompasses all spheres of society, be
they
public or private.
The Convention further emphasizes women’s right to enjoyment and
protection of all human rights contained in regional and international
instruments, and
the States parties “recognize that violence against women prevents and
nullifies” the
exercise of civil, political, economic, social and cultural rights (arts. 4-5). Lastly,
the
Convention provides that the right of every woman to be free from violence
includes,
Lawyers 93
Implementation
among others, the right to be free from all forms of discrimination, as well as the
right
to be valued and educated free of stereotyped patterns of behaviour (art. 6).
The States parties agree in particular “to pursue, by all appropriate means and
without delay, policies to prevent, punish and eradicate” violence against women
(art.
7), and also “to undertake progressively specific measures”, such as
programmes “to
promote awareness and observance of the right of women to be free from
violence”,
“to modify social and cultural patterns of conduct of men and women” and “to
promote the education and training of all those involved in the administration of
justice, police and other law enforcement officers” (art. 8).
The mechanisms of implementation foreseen by the Convention are
threefold:
_ the reporting procedure: in the first place, the States parties shall include in
their
national reports to the Inter-American Commission of Women, inter alia,
“information on
measures adopted to prevent and prohibit violence against women” and any
difficulties they have observed in applying those measures (art. 10);
_ advisory opinions: the States parties and the Inter-American Commission of
Women may request of the Inter-American Court of Human Rights advisory
opinions
on the interpretation of the Convention on the Prevention, Punishment and
Eradication of Violence against Women (art. 11); and, finally,
_ individual petitions: any person or group of persons, or any non-
governmental
entity legally recognized in one or more member States of the OAS “may lodge
petitions with the Inter-American Commission on Human Rights containing
denunciations or complaints of violations of Article 7 of this Convention by a
State
Party”, that is, of its duties to prevent, punish and eradicate violence against
women
as described in that article (art. 12; emphasis added).
The Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women is the only international treaty
exclusively aimed at the elimination of gender-based violence.
The Convention covers violence occurring in all spheres of society,
whether
public or private.
The implementation mechanism consists of: (1) a reporting
procedure to the Inter-American Commission of Women; and (2) the
possibility of submitting individual petitions to the Inter-American
Commission on Human Rights.
Both the States parties and the Inter-American Commission of Women
may request advisory opinions of the Inter-American Court of
Human Rights on the interpretation of the Convention.
and Lawyers
Implementation
4. European Human Rights Treaties

4.1 The European Convention on Human Rights,
1950, and its Protocols Nos. 1, 4, 6 and 7
The European Convention on Human Rights was adopted by the Council of
Europe in 1950, and entered into force on 3 September 1953.35 As of 29 April
2002 it
had 43 States parties.36 The Convention originally created both a European
Commission and a European Court of Human Rights entrusted with the
observance of
the engagements undertaken by the High Contracting Parties to the Convention,
but
with the entry into force of Protocol No. 1137 to the Convention on 1 November
1998,
the control machinery was restructured so that all allegations are now directly
referred
to the European Court of Human Rights in Strasbourg, France. This Court is the
first,
and so far only, permanent human rights court sitting on a full-time basis.
The rights protected by the Convention have been extended by Additional
Protocols Nos. 1, 4, 6 and 7, all of which will be dealt with below. Protocol No. 12
concerning the prohibition of discrimination was opened for signature on 4
November
2000 in Rome, in the context of the fiftieth anniversary celebrations of the
Convention
itself, which was signed in the Italian capital on 4 November 1950. Finally,
Protocol
No. 13 was opened for signature in Vilnius on 3 May 2002. This protocol concerns
the
abolition of the death penalty in all circumstances.
The High Contracting Parties “shall secure to everyone within their
jurisdiction the rights and freedoms defined in Section I of [the] Convention” (art.
1).
This means, inter alia, that they also have to provide everyone whose rights and
freedoms guaranteed by the Convention have been violated with “an effective
remedy
before a national authority notwithstanding that the violation has been
committed by
persons acting in an official capacity” (art. 13).
4.1.2 The rights guaranteed
The European Convention guarantees the following civil and political rights:
_ the right to life – art. 2;
_ the prohibition of torture, inhuman or degrading treatment or punishment – art.
3;
_ the prohibition of slavery, servitude, and forced or compulsory labour – art. 4;
_ the right to liberty and security – art. 5;
Lawyers 95
Implementation
35The official name of this treaty is: Convention for the Protection of Human Rights and Fundamental
Freedoms, see European
Treaty Series (ETS), no.: 005.
36For the ratifications of the European Convention on Human Rights and its various Protocols, see
http://conventions.coe.int/.
37ETS no.: 155.
_ the right to a fair trial – art. 6;
_ prohibition of ex post facto laws – art. 7;
_ the right to respect for one’s private and family life – art. 8;
_ the right to freedom of thought, conscience and religion – art. 9;
_ the right to freedom of expression – art. 10;
_ the right to freedom of assembly and association – art. 11;
_ the right to marry and to found a family – art. 12;
_ the right to an effective remedy – art. 13;
_ prohibition of discrimination – art. 14.
Protocol No. 1 was adopted in 1952 and entered into force on 18 May 1954.38
As of 29 April 2002 it had 40 States parties. This Protocol provides the following
rights
and undertakings between the States parties thereto:
_ the right to peaceful enjoyment of one’s possessions – art. 1;
_ the right to education and the right of parents to ensure such education and
teaching
in conformity with their own religious and philosophical convictions – art. 2;
_ the holding of free elections at reasonable intervals by secret ballot – art. 3.
Protocol No. 4 of 1963 entered into force on 2 May 1968.39 As of 29 April
2002 it had 35 States parties. Protocol No. 4 added the following rights to be
protected:
_ the right not to be deprived of one’s liberty merely on the ground of inability to
fulfil
a contractual obligation – art. 1;
_ the right to freedom of movement and of residence; the right to leave any
country,
including one’s own – art. 2;
_ the right not to be expelled from the country of which one is a national and the
right
not to be refused entry into the State of which one is a national – art. 3;
_ prohibition of the collective expulsion of aliens – art. 4.
Protocol No. 6 of 1983 came into force on 1 March 1985.40 As of 29 April
2002 it had 40 States parties. Protocol No. 6 concerns the abolition of the death
penalty
(art. 1), but a State may nonetheless “make provision in its law for the death
penalty in
respect of acts committed in time of war or of imminent threat of war” (art. 2).
No
derogations can be made from the provisions of these articles under article 15 of
the
Convention, nor can any reservations be made to this Protocol (arts. 3-4).
Protocol No. 7, adopted in 1984, entered into force on 1 November 1988.41
As of 29 April 2002 there were 32 States parties to this Protocol, which extended
the
scope of the Convention by providing for the following additional protection:
and Lawyers
Implementation
38The official name of this Protocol is: Protocol No. 1 to the Convention for the Protection of Human Rights
and Fundamental
Freedoms, securing certain rights and freedoms other than those already included in the Convention, ETS,
no.: 009.
and Fundamental
Freedoms, securing certain rights and freedoms other than those already included in the Convention and in
the First Protocol, ETS,
no.: 046.
and Fundamental
Freedoms concerning the abolition of the death penalty, ETS, no.: 114.
and Fundamental
Freedoms, ETS no.: 117.
_ certain protections against arbitrary expulsion of aliens lawfully resident in the
territory of the High Contracting Parties – art. 1;
_ the right to appeal against a criminal conviction – art. 2;
_ the right to compensation in case of a miscarriage of justice – art. 3;
_ the right not to be tried again for the same offence within the jurisdiction of the
same State – a provision which cannot be derogated from under article 15 of the
Convention – art. 4; and
_ equality of rights and responsibilities between spouses as to marriage, during
marriage and in the event of its dissolution – art. 5.
As indicated above, Protocol No. 1242 to the European Convention provides
a general prohibition of discrimination, which is independent of the other rights
and
freedoms guaranteed by the Convention. According to article 1(1) of the
Protocol, “the
enjoyment of any right set forth by law shall be secured without discrimination
on any
ground such as sex, race, colour, language, religion, political or other opinion,
national
or social origin, association with a national minority, property, birth or other
status”.
Article 1(2) of the Protocol specifies that “no one shall be discriminated against
by any
public authority on any ground such as those mentioned in paragraph 1”. As of
29 April
2002, however, this Protocol had not entered into force, having received only
one out
of the necessary ten ratifications.
4.1.3 Permissible limitations on the exercise of rights43
Some of the articles of the Convention and its Protocols provide for the
possibility to impose restrictions on the exercise of rights in particular defined
circumstances. This is the case with articles 8 (the right to respect for one’s
private and
family life), 9 (the right to freedom of thought, conscience and religion), 10 (the
right to
freedom of expression) and 11 (the right to peaceful assembly and freedom of
association) of the Convention. The same holds true with regard to the right to
peaceful
enjoyment of one’s possessions in article 1 of Protocol No. 1 and the right to
freedom
of movement and residence in article 2 of Protocol No. 4.
The restrictions on the exercise of these rights must, however, in all
circumstances be imposed “in accordance with the law”, be “provided for by
law” or
“prescribed by law”; and, with the exception of article 1 of Protocol No. 1, they
must
also be “necessary in a democratic society” for the particular purposes specified
in the
various articles, such as, for instance, in the interests of public safety, for the
protection
of public order, health or morals, the prevention of disorder or crime or the
protection
of the rights and freedoms of others (the legitimate reasons vary depending on
the right
protected). It is true that, while the notion of a democratic society is thus not
referred to
in connection with restrictions that might be imposed on the right to peaceful
enjoyment of one’s possessions, the notion of democracy and a democratic
constitutional order is ever-present in the Convention and is a precondition for
States
that wish to join the Council of Europe. It is therefore possible to conclude that
Lawyers 97
Implementation
42The official name of this Protocol is: Protocol No. 12 to the European Convention for the Protection of
Human Rights and
Fundamental Freedoms, ETS no.: 177.
43For further information on limitations on the exercise of rights, see in particular Chapter 12 of this Manual
concerning “Some
Other Key Rights: The Freedoms of Thought, Conscience, Religion, Opinion, Expression, Association and
Assembly”.
restrictive measures clearly alien to a democratic society respectful of human
rights
standards would not be considered to be in “the public interest” within the
meaning of
article 1 of Protocol No. 1.
The case-law of both the European Court of Human Rights and the now
defunct European Commission of Human Rights contains rich and numerous
interpretations of the term “necessity” in the various limitations provisions,
examples
of which will be given in Chapter 12. Although “it is for the national authorities to
make
the initial assessment of the reality of the pressing social need implied by the
notion
of ‘necessity’” in the context of freedom of expression, for instance, it is for the
Court
to give the final ruling on the conformity of any measure with the terms of the
Convention, a competence that “covers not only the basic legislation but also the
decision applying it, even one given by an independent court”; this European
supervision thus also comprises the “aim” and “necessity” of the measure
challenged.44
In exercising its supervisory functions with respect to the right to freedom of
expression, for instance, the Court has also repeatedly held that it is obliged “to
pay the
utmost attention to the principles characterising a ‘democratic society’”.45 The
Court
must consequently decide whether the reasons provided by the national
authorities to
justify the necessity of the interference in the exercise of the right concerned
“are
relevant and sufficient”.46 In other cases again it has emphasized that the
exceptions to
the right to privacy in article 8(2) must be “interpreted narrowly” and that the
necessity
thereof must be “convincingly established”.47 It is thus not sufficient that the
interference concerned might be useful or that it is simply so harmless that it
does not
disturb the functioning of a democratic society. On the contrary, the High
Contracting
Parties are under a legal obligation to provide sufficient reasons to prove the
necessity
in a democratic society both of the law on which the measure is based and of the
measure itself.
The European Convention on Human Rights and its Protocols 1, 4, 6
and 7 provide extensive protection of the rights and freedoms of the
human person at the European level.
Limitations on the exercise of certain rights protected by the Convention
may be permissible, provided that they comply with the principles of:
_ legality;
_ the legitimate needs of a democratic society; and
_ necessity/proportionality, in that the measures must be
necessary in a democratic society for one or more of the specified
purposes.
and Lawyers
Implementation
44Eur. Court HR, Handyside judgment of 7 December 1976, Series A, No. 24, pp. 22-23, paras. 48-49;
emphasis added.
45Ibid., p. 23, para. 49.
46Ibid., pp. 23-24, paras. 49-50.
47See Judgments of Funke, Crémieux and Miailhe of 25 February 1993, Series A, Nos. 256 A-C, p. 24, para.
55, p. 62, para. 38 and p. 89,
para. 36 respectively.
Although differing in some respects from article 4 of the International
Covenant on Civil and Political Rights and article 27 of the American Convention
on
Human Rights, article 15 of the European Convention provides for the possibility
of
derogations from legal obligations in exceptional situations. In general terms, the
conditions are the following:
_ the condition of exceptional threat: a High Contracting Party may resort to
derogations “in time of war or other public emergency threatening the life of the
nation”. The European Court has interpreted this to mean that the High
Contracting Party must face an “exceptional” and “imminent” “situation of crisis
or
emergency which affects the whole population and constitutes a threat to the
organised life of the community of which the State is composed”.48 In the Greek
case,
the Commission specified that “the crisis or danger must be exceptional, in that
the
normal measures or restrictions, permitted by the Convention for the
maintenance
of public safety, health and order, are plainly inadequate”.49 The Court has,
moreover,
granted Governments a “wide margin of appreciation” in deciding whether they
are
faced with a public emergency within the meaning of article 15(1).50 However, in
exercising its supervision, the Court “must give appropriate weight to such
relevant
factors as the nature of the rights affected by the derogation, the circumstances
leading to, and the duration of, the emergency situation”;51
_ the condition of non-derogability of certain obligations: according to
article
15(2) of the Convention the following articles cannot be derogated from: article 2
(the right to life), “except in respect of deaths resulting from lawful acts of war”;
article 3 (freedom from torture); article 4(1) (freedom from slavery and
servitude);
and article 7 (no punishment without law). Finally, following the entry into force
of
Protocols Nos. 6 and 7, no derogations can be made from the provisions
concerning the abolition of the death penalty and protection against double
jeopardy;
_ the condition of strict necessity: according to article 15(1), a High
Contracting
Party may only “take measures derogating from its obligations under this
Convention to the extent strictly required by the exigencies of the situation”. The
European Court of Human Rights has held that the High Contracting Parties also
enjoy a “wide margin of appreciation” in deciding “how far it is necessary to go
in
attempting to overcome the emergency”;52 however, the decisions taken by the
domestic authorities are always subjected to supervision at the European level;53
the
measures of derogation taken by the High Contracting Party must not be
“inconsistent with its other obligations under international law”. In the case of
Lawyers 99
Implementation
48Eur. Court HR, Lawless Case (Merits), judgment of 1 July 1961, Series A, No. 3, p. 56, para. 28. The term
“imminent” is only present
in the French text of the judgment; both texts are equally authentic.
49Eur. Comm. HR, Greek case, Report of the Commission, 12 Yearbook, p. 72, para. 152; emphasis added.
50Eur. Court HR, Brannigan and McBride judgment of 26 May 1993, Series A, No. 258-B, p. 49, para. 43.
51Ibid., p. 49, para. 43 at p. 50.
52Ibid., p. 49, para. 43.
53Ibid., pp. 49-50, para. 43.
Brannigan and McBride, the European Court of Human Rights had to examine
whether the United Kingdom Government had fulfilled the requirement of
“official
proclamation” under article 4(1) of the International Covenant on Civil and
Political
Rights; it did so without seeking to define authoritatively the meaning of the
terms
“officially proclaimed” in article 4 of the Covenant; yet it had to examine whether
there was “any plausible basis for the applicant’s argument” that this condition
had
not been complied with;54
_ the condition of non-discrimination: it is noteworthy that article 15 of the
European Convention contains no specific prohibition of discrimination, and that
this condition is thus exclusively regulated by article 14;
_ the condition of international notification: the High Contracting Party
availing
itself of the right to derogate “shall keep the Secretary-General of the Council of
Europe fully informed of the measures” taken and of “the reasons therefor”; it
shall
also inform him “when such measures have ceased to operate and the provisions
of
the Convention are again being fully executed”; if need be, the European Court
of
Human Rights examines proprio motu whether this condition has been complied
with.55
When derogating from their obligations under article 15 of the European
Convention on Human Rights, the High Contracting Parties must
comply with:
_ the condition of exceptional threat;
_ the condition of non-derogability of certain obligations;
_ the condition of strict necessity;
_ the condition of consistency with other international obligations; and
_ the condition of international notification.

As from 1 November 1998, when the restructuring of the control machinery
established under the Convention entered into force, all alleged violations of the
rights
and freedoms guaranteed by the Convention and its Protocols are referred
directly to
the European Court of Human Rights, which shall “ensure the observance of the
engagements undertaken by the High Contracting Parties” (art. 19). The Court is
permanent, and consists of a number of judges equal to that of the Contracting
Parties,
that is, 43 as of 30 April 2002 (art. 20). The Court can sit in committees of three
judges,
in Chambers of seven judges or in aGrand Chamber of seventeen judges (art.
27(1)).
Apart from being competent to receive and examine inter-State complaints
(art. 33), the Court “may receive applications from any person, non-
governmental
organization or group of individuals claiming to be the victim of a violation by
one of
the High Contracting Parties of the rights set forth in the Convention or the
protocols
100 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges,
Implementation
54Ibid., p. 57, para. 72.
55See e.g. Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No.
25, p. 84, para. 223.
thereto” (art. 34). The “High Contracting Parties undertake not to hinder in any
way the
effective exercise of this right” (art. 34, in fine). The right to bring inter-State
and
individual complaints to the Court does not depend on any specific act
of
acceptance.
The Court may not, however, deal with an application of any kind unless
domestic remedies have been exhausted and the application has been
submitted within
six months from the date on which the final decision was taken (art. 35(1)).
Further
criteria of admissibility exist with regard to individual applications, which must
not, for
instance, be anonymous or “substantially the same as a matter that has already
been
examined by the Court or has already been submitted to another procedure of
international investigation or settlement and contains no relevant new
information”
(art. 35(2)).
The Court decides on the admissibility and merits of the case and, if necessary,
undertakes an investigation. After having declared a case admissible, it also
places itself
“at the disposal of the parties concerned with a view to securing a friendly
settlement of
the matter on the basis of respect for human rights as defined in the Convention
and
the protocols thereto” (art. 38(1)(b)). Hearings before the Court are public,
unless it
decides otherwise in “exceptional circumstances” (art. 40).
Within a period of three months from the date of the judgment of the
Chamber, any party to the case may, in exceptional circumstances, request that
the case
be referred to a Grand Chamber. If the request is accepted, the Grand Chamber
shall
decide the case by means of a judgment that shall be final (arts. 43-44).
Otherwise, the
judgment of the Chamber will be final when the parties declare that they have no
intention of requesting referral to the Grand Chamber; or three months after the
judgment in the absence of such a request; or, finally, when the request for
referral has
been rejected (art. 44).
The High Contracting Parties “undertake to abide by the final judgment of the
Court in any case to which they are parties”; the execution of the final judgment
is
supervised by the Committee of Ministers of the Council of Europe (art. 46).
The implementation of the European Convention on Human Rights is
monitored by the European Court of Human Rights, which is a
permanent and full-time body, sitting in
_ Committees of 3 judges;
_ Chambers of 7 judges; or
_ a Grand Chamber of 17 judges.
The Court is competent to receive and examine
_ inter-State cases; and
_ applications from any person, non-governmental organization or group
of individuals claiming to be the victim of a violation of the rights
guaranteed by the Convention or its Protocols.
Lawyers 101
Implementation
4.2 The European Social Charter, 1961, and its
Protocols of 1988, 1991 and 1995
The European Social Charter56 was adopted in 1961 and entered into force on
26 February 1965. As of 30 April 2002 it had 25 ratifications. The European
Social
Charter aims at securing a number of social and economic rights, and it is
therefore the
natural counterpart to the European Convention on Human Rights which
guarantees
civil and political rights. The Charter sets up a biennial reporting procedure and,
following the entry into force of the 1995 Additional Protocol, a system of
collective
complaints was also created.
There are three fundamental undertakings that each State has to accept when
adhering to the European Social Charter:57
_ first, itmust “consider Part I of this Charter as a declaration of the aims which
it will
pursue by all appropriate means, as stated in the introductory paragraph of that
Part” (art. 20(1)(a)). Part I of the Charter lists in general terms the nineteen
rights
and principles that should “be effectively realized” through the national and
international means pursued by the Contracting Parties;
_ second, itmust “consider itself bound by at least five of the following articles
of Part
II” of the Charter, namely, articles 1, 5, 6, 12, 13, 16 and 19, which respectively
concern the right to work, the right to organize, the right to bargain collectively,
the
right to social security, the right to social and medical assistance, the right of the
family to social, legal and economic protection, and the right of migrant workers
and
their families to protection and assistance (Art. 20(1)(b));
_ lastly, it must moreover “consider itself bound by such a number of articles or
numbered paragraphs of Part II of the Charter as it may select, provided that the
total number of articles or numbered paragraphs by which it is bound is not less
than 10 articles or 45 numbered paragraphs” (art. 20(1)(c)).
On the specific conditions explained above, the Contracting States undertake
“to consider themselves bound by the obligations laid down in the following
articles
and paragraphs”, which concern:
_ the right to work – art. 1;
_ the right to just conditions of work – art. 2;
_ the right to safe and healthy working conditions – art. 3;
_ the right to a fair remuneration – art. 4;
Implementation
56ETS, no.: 35 and, for the three Additional Protocols, see ETS, nos.: 128, 142 and 158.
57For more details about the European Social Charter, see e.g. David Harris, The European Social Charter
(Charlottesville,
University Press of Virginia, 1984, Procedural Aspects of International Law Series, vol. 17), xvi, 345 pp.; and
L. Samuel, Fundamental
Social Rights: Case law of the European Social Charter (Strasbourg, Council of Europe, 1997), 450 pp. For
information about the European
Social Charter see also the Council of Europe web site: www.coe.int/.
_ the right to organize – art. 5;
_ the right to bargain collectively – art. 6;
_ the right of children and young persons to protection – art. 7;
_ the right of employed women to protection – art. 8;
_ the right to vocational guidance – art. 9;
_ the right to vocational training – art. 10;
_ the right to protection of health – art. 11;
_ the right to social security – art. 12;
_ the right to social and medical assistance – art. 13;
_ the right to benefit from social welfare services – art. 14;
_ the right of physically or mentally disabled persons to vocational training,
rehabilitation and social resettlement – art. 15;
_ the right of the family to social, legal and economic protection – art. 16;
_ the right of mothers and children to social and economic protection – art. 17;
_ the right to engage in a gainful occupation in the territory of other Contracting
Parties – art. 18; and, finally,
_ the right of migrant workers and their families to protection and assistance –
art. 19.
The 1988 Additional Protocol entered into force on 4 September 1992 and as
of 30 April 2002 had ten States parties. By virtue of this Protocol, which does not
prejudice the provisions of the European Social Charter itself, the Contracting
Parties
also undertake to consider themselves bound by one or more of the articles
concerning
the following rights:
_ the right to equal opportunities and equal treatment in matters of employment
and
occupation without discrimination on the grounds of sex – art. 1;
_ the right to information and consultation – art. 2;
_ the right to take part in the determination and improvement of working
conditions
and the working environment – art. 3; and
_ the right of elderly persons to social protection – art. 4.
4.2.3 Permissible limitation on the exercise of rights
The Charter contains a general limitation provision (art. 31) whereby the
rights and principles set forth in Parts I and II of the Charter shall not be subject
to any
restrictions or limitations not already specified therein “except such as are
prescribed by
law and are necessary in a democratic society for the protection of the rights and
freedoms of others or for the protection of public interest, national security,
public
health, or morals”. As in most other limitation provisions in the field of
international
human rights law, the following three important legal conditions are all present
in this
provision, namely, the principle of legality, the principle of a democratic
society,
and the principle of proportionality.
Lawyers 103
Implementation
The European Social Charter further contains a derogation provision
according to which, “in time of war or other public emergency threatening the
life of
the nation any Contracting Party may take measures derogating from its
obligations
under this Charter to the extent strictly required by the exigencies of the
situation,
provided that such measures are not inconsistent with its other obligations under
international law” (art. 30(1)). An Appendix to the Charter which forms an
integral part
thereof provides that the “term ‘in time of war or other public emergency’ shall
be so
understood as to cover also the threat of war” (emphasis added).
It is noteworthy that, as compared to article 15 of the European Convention
on Human Rights, article 27 of the American Convention on Human Rights and
article
4 of the International Covenant on Civil and Political Rights, article 30 of the
European
Social Charter contains neither any prohibition of discrimination nor any
non-derogable rights. The scope for permissible restrictions in emergency
situations
seems thus to be wider than in the field of civil and political rights.
The European Social Charter, 1961, protects a wide range of social and
economic rights. While the Charter provides the contracting States with a
certain flexibility, they must consider themselves bound by at least 5 of 7
specified core articles, as well as by an additional 10 articles or 45
numbered paragraphs.
The Charter allows for the limitation of the rights contained therein
provided that such limitations are consistent with the principles of legality,
a democratic society and proportionality.
States parties may also be allowed to derogate from their legal obligations
under the Charter in times of war, threat of war, or other public
emergency. The measures of derogation taken must comply with the
principles of strict necessity and consistency with the State’s other
international obligations
The procedure for examining the reports submitted under the European
Social Charter was revised by the 1991 Amending Protocol, which had not,
however,
entered into force as of 30 April 2002. In spite of this, and following a decision
taken in
December 1991 by the Committee of Ministers, the supervision measures
embodied in
the Amending Protocol are de facto operational. As amended de facto, the
monitoring
procedures can consequently be briefly described as follows:
_ the reporting procedure: in the first place, the Contracting Parties undertake
to
submit biennial reports to the Secretary-General of the Council of Europe on the
application of those provisions they have expressly accepted (art. 21); secondly,
they
have to submit reports on those provisions they have not accepted when
requested
by the Committee of Ministers to do so (art. 22); the Contracting Parties also
have to
transmit a copy of these reports to specific national organizations of employers
and
Implementation
trade unions; the Secretary-General himself shall forward a copy of the reports to
the international NGOs which have consultative status with the Council of Europe
and which have particular competence in the matters governed by the Social
Charter. The country reports are then examined by a Committee of Independent
Experts (currently named European Committee of Social Rights) consisting of at
least nine members. Upon completion of its examination, the Committee of
Independent Experts draws up a report containing its conclusions which are to be
made public. The country reports as well as, in particular, the conclusions of the
Committee of Independent Experts are thereafter submitted to a Governmental
Committee composed of one representative of each of the Contracting Parties.
The
Governmental Committee prepares the decisions of the Committee of Ministers
and shall explain why a particular situation should be the subject of
recommendations. Its report to the Committee of Ministers shall be made public;
the Committee of Ministers shall finally adopt, by a majority of two thirds of
those
voting, with entitlement to voting limited to the Contracting Parties, on the basis
of
the report of the Governmental Committee, a resolution covering the entire
supervision cycle and containing individual recommendations to the Contracting
Parties concerned (arts. 23-28 as amended de facto). Lastly, the Secretary-
General
communicates the conclusions of the Committee of Ministers to the
Parliamentary
Assembly of the Council of Europe for the purpose of holding periodic plenary
debates (art. 29). The Charter provides for the duty to involve both the
International
Labour Organization (ILO) and specialized NGOs in the monitoring procedures in
a consultative capacity (art. 26 and art. 27 as amended de facto);
_ the complaints procedure: the Additional Protocol Providing for a System of
Collective Complaints entered into force on 1 July 1998, and as of 30 April 2002
had
nine States parties. It introduced a procedure whereby international and national
organizations of employers and trade unions (as well as certain non-
governmental
organizations) can submit complaints alleging unsatisfactory application of the
Charter (art. 1). The complaint shall be addressed to the Secretary-General of
the
Council of Europe who shall “notify it to the Contracting Party concerned and
immediately transmit it to the Committee of Independent Experts” (art. 5). The
procedure before the Committee is primarily written but may also be oral (art. 7).
The Committee prepares a report to be submitted to the Committee of Ministers,
in
which it shall, inter alia, present its conclusions as to whether or not the
Contracting
Party concerned has ensured the satisfactory application of the Charter
provisions
(art. 8 (1)). It is ultimately for the Committee of Ministers to adopt a resolution as
to
whether the Contracting Party has applied the Charter provisions in a
satisfactory
manner and, if not, to address a recommendation to the Contracting Party
concerned (art. 9).
The European Social Charter, 1961, provides for a reporting procedure,
as well as, on a more limited scale, for a collective complaints procedure
allowing international and national organizations of employers and trade
unions as well as non-governmental organizations to submit complaints
alleging an unsatisfactory application of the Charter (Additional
Protocol).
Lawyers 105
Implementation
4.3 The European Social Charter (revised), 1996
The European Social Charter in its revised version was adopted in 1996 and
entered into force on 1 July 1999. As of 30 April 2002 it had 12 ratifications.58 The
revised Social Charter will thus only progressively replace the original Charter,
the
terms of which it updates and extends. By taking into account new social and
economic
developments, the revised Charter amends certain existing provisions and adds
new
ones. As to the new features, they include, in particular, a considerably longer
list of
rights and principles in Part I than those contained in the old Charter (31 rights
and
principles as compared to only 19 in the 1961 Charter). In addition to the rights
taken
from the 1988 Additional Protocol, and which have not been amended, the new
important features include:
_ the right to protection in cases of termination of employment – art. 24;
_ the right of workers to protection of their claims in the event of the insolvency
of
their employer – art. 25;
_ the right to dignity at work – art. 26;
_ the right of workers with family responsibilities to equal opportunities and
equal
treatment – art. 27;
_ the right of workers’ representatives to protection in the undertaking and
facilities
to be accorded to them – art. 28;
_ the right to information and consultation in collective redundancy procedures –
art.
29;
_ the right to protection against poverty and social exclusion – art. 30; and lastly,
_ the right to housing – art. 31.
To the number of articles comprising the hard core of the revised Charter
have been added articles 7 and 20, concerning the right of children and young
persons
to protection and the right of women and men to equal opportunities and equal
treatment in matters of employment and occupation; and the number of core
articles
that have to be accepted by the Contracting Parties has been increased to six. In
addition, they must be bound by not less than 16 articles or 63 numbered
paragraphs
(Part IV, art. A).
The implementation of the legal obligations of the revised Charter is
submitted to the same supervision procedure as the original European Social
Charter
(Part IV, art. C).
The European Social Charter (revised), 1996, updates and extends the
old Charter, and increases to 6 the number of core rights that must be
accepted by the States parties. They must moreover agree to be bound by
not less than 16 other articles or 63 numbered paragraphs.
Implementation
58ETS no.: 163.
4.4 The European Convention for the Prevention of

Torture and Inhuman or Degrading Treatment or
Punishment, 1987
The European Convention for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment59 was adopted in 1987 and entered into
force on 1
February 1989. As of 30 April 2002 it had 42 Contracting Parties. While the
European
Convention is closely related to the Convention against Torture adopted by the
United
Nations General Assembly in 1984, which was dealt with in Chapter 2, it has a
distinctive feature in that it established a European Committee for the Prevention
of
Torture and Inhuman or Degrading Treatment or Punishment, which, as will be
seen
below, has the power to visit any place of detention within the jurisdiction of the
Contracting States.
4.4.1 The undertakings of the States parties and the
monitoring mechanism
The European Convention for the Prevention of Torture contains no
definition of the illegal act or practice of torture, but, in its second preambular
paragraph, it refers to article 3 of the European Convention on Human Rights,
which
provides that “no one shall be subjected to torture or to inhuman or degrading
treatment or punishment”. Since the monitoring procedure set up under the
European
Convention on Human Rights operates only in regard to the lodging of individual
or
inter-State complaints, it was considered necessary to create “a non-judicial
means of a
preventive character based on visits” in order to try to eradicate the use of
torture in
European places of detention (see fourth preambular paragraph).
The purpose of the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment is therefore “by means of visits
[to]
examine the treatment of persons deprived of their liberty with a view to
strengthening,
if necessary, the protection of such persons from torture and from inhuman or
degrading treatment or punishment” (art. 1). The State party “shall permit
visits”, in
accordance with the Convention, “to any place within its jurisdiction where
persons are
deprived of their liberty by a public authority” (art. 2), and, to this end, “the
Committee
and the competent national authorities ... shall cooperate with each other” (art.
3).
The Committee consists of a number of members equal to that of the States
parties, who serve in their individual capacity in an independent and impartial
manner
(art. 4). “Apart from periodic visits, the Committee may organize such other
visits as
appear to it to be required in the circumstances” (art. 7). After having notified
the
Government of the Party concerned of its intention to carry out a visit, the
Committee
“may at any time visit any place” within the jurisdiction of the relevant State
party
“where persons are deprived of their liberty by a public authority” (art. 8(1) read
in
conjunction with art. 2).
Lawyers 107
Implementation
59ETS no.: 126.
“In exceptional circumstances, the competent authorities of the Party
concerned may make representations to the Committee against a visit at the
time or to
the particular place proposed by the Committee”, although “such
representations may
only be made on grounds of national defence, public safety, serious disorder in
places
where persons are deprived of their liberty, the medical condition of a person or
that an
urgent interrogation relating to a serious crime is in progress” (art. 9(1)). When
such
representations have been made, the Committee and the State party “shall
immediately
enter into consultations in order to clarify the situation and seek agreement on
arrangements to enable the Committee to exercise its functions expeditiously
(art. 9(2)).
Following each visit “the Committee shall draw up a report on the facts found
during the visit, taking account of any observations which may have been
submitted by
the Party concerned”. The report shall then be transmitted to the State party
with any
recommendations that the Committee considers necessary (art. 10). If the State
party
“fails to cooperate or refuses to improve the situation in the light of the
Committee’s
recommendations, the Committee may decide, after the Party has had an
opportunity
to make known its views, by a majority of two-thirds of its members to make a
public
statement on the matter” (art. 10(2)).
Otherwise, both the information collected by the Committee during an
on-the-spot visit and its report shall be confidential, although the report shall be
published, “together with any comments of the Party concerned”, whenever so
requested by the latter (art. 11(1) and (2)).
The European Convention for the Prevention of Torture and Inhuman
or Degrading Treatment and Punishment complements the European
Convention on Human Rights by creating a system of visits for the
purposes of preventing and eradicating the use of torture in Europe.
To this end, the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment is authorized both to
make periodic visits to the States parties concerned and to organize such
other visits as it deems required by the circumstances.
4.5 The Framework Convention for the Protection of
National Minorities, 1995
The Framework Convention for the Protection of National Minorities60 was
adopted by the Committee of Ministers of the Council of Europe in 1995, and
entered
into force on 1 February 1998. As of 30 April 2002 it had 34 States parties. One
of the
particular features of the Framework Convention is that, at the invitation of the
Committee of Ministers, it is open to signature by States that are not members of
the
Council of Europe (art. 29). This Framework Convention is the first legally binding
multilateral instrument devoted to the protection of national minorities in
general and it
makes clear that the protection of these minorities “forms an integral part of the
Implementation
60ETS no.: 157.
international protection of human rights, and as such falls within the scope of
international cooperation” (art. 1).61
The Framework Convention contains, however, “mostly programme-type
provisions”, because, as the term “Framework” indicates, “the principles
contained in
the instrument are not directly applicable in the domestic legal orders of the
Member
States, but will have to be implemented through national legislation and
appropriate
governmental policies”.62 The Convention also establishes that “every person
belonging to a national minority shall have the right freely to choose to be
treated or not
to be treated as such”, without suffering any disadvantage because of this
choice (art.
3(1)).
The undertakings of the States parties vis-à-vis national minorities are defined
in Section II of the Framework Convention, and cover a number of important
issues,
such as, in particular:
_ the right to equality before the law, equal protection by the law and the
promotion
of full and effective equality in various areas – art. 4;
_ promotion of conditions necessary for the maintenance and development of the
culture and the preservation of the essential elements of the identity of national
minorities – art. 5;
_ the encouragement of tolerance and intercultural dialogue and the protection
of
persons who may be subject to threats or acts of discrimination – art. 6;
_ the freedoms of peaceful assembly, association, expression, thought,
conscience
and religion; the right to manifest beliefs and establish religious institutions –
arts. 7-8;
_ the right to freedom of expression, including the right of access to the media –
art. 9;
_ linguistic freedoms, such as the right to use one’s minority language in private
or in
public, and, to the extent possible, also before administrative authorities; “the
right
to be informed promptly, in a language which he or she understands, of the
reasons
for his or her arrest, and of the nature and cause of any accusation against him
or
her, and to defend himself or herself in this language, if necessary with the free
assistance of an interpreter” – art. 10;
_ the rights to a name in one’s minority language and to display signs of a
private
nature visible to the public – art. 11;
_ education: fostering of knowledge of the culture, history, language and religion
of
the national minorities and of the majority; the right to set up and manage
educational institutions – arts. 12-13;
_ the right to learn one’s minority language – art. 14;
_ effective participation of persons belonging to national minorities in cultural,
social
and economic life as well as in public affairs – art. 15;
Lawyers 109
Implementation
61See Introduction to the Framework Convention for the Protection of National Minorities,
http://www.humanrights.coe.int/Minorities/Eng/FrameworkConvention/FCNMintro.htm, p. 1.
62Ibid., loc. cit.
_ prohibition of forced assimilation in that States “shall refrain from measures
which
alter the proportions of the population in areas inhabited by persons belonging to
national minorities and are aimed at restricting the rights and freedoms flowing
from the principles enshrined in the ... Convention” – art. 16;
_ the right to “maintain free and peaceful contacts across frontiers with persons
lawfully staying in other States” and the right to participate in the activities of
NGOs, both locally and internationally – art. 17.
“Where necessary”, the States parties are allowed to resort only to “those
limitations, restrictions or derogations which are provided for in international
legal
instruments” and, in particular, in the European Convention on Human Rights,
and
only “in so far as they are relevant to the rights and freedoms flowing from the
said
principles” (art. 19). In other words, the terms of the Framework Convention
cannot be
interpreted as adding a further legal basis for imposing limitations on the
exercise of
rights, or resorting to derogations more extensive than those already allowed, for
instance, by article 15 of the European Convention on Human Rights and article
4 of
the International Covenant on Civil and Political Rights.
The Committee of Ministers of the Council of Europe has the task of
monitoring the implementation of the Framework Convention by the Contracting
States (art. 24). In carrying out this task, the Committee of Ministers “shall be
assisted
by an advisory committee, the members of which shall have recognized
expertise in the
field of the protection of national minorities” (art. 26). The monitoring is based
on a
reporting procedure, with the Contracting State being required to submit, within
one
year following the entry into force of the Convention in its respect, “full
information on
the legislative and other measures taken to give effect to the principles set out”
in the
Convention, and thereafter, whenever the Committee of Ministers so requests,
“any
further information of relevance to the implementation” thereof (art. 25).63
The Framework Convention for the Protection of National Minorities is
the first legally binding international treaty aimed at protecting national
minorities.
This Convention contains undertakings vis-à-vis national minorities in
areas such as, for instance, the right to equality before the law, freedom of
expression, freedom of religion, freedom of association and assembly,
linguistic freedoms, education, promotion of culture and national identity,
and the encouragement of tolerance and intercultural dialogue.
Implementation
63For more details of this monitoring procedure, see “Rules on the monitoring arrangements under articles
24 to 26 of the
Framework Convention for the Protection of National Minorities”, Resolution (97)10, adopted by the
Committee of Ministers on 17
September 1997; for the text see the Council of Europe web site: http://www.coe.int/.
5. Concluding remarks
This Chapter has provided some basic information about the rights protected
by the major treaties existing in Africa, the Americas and Europe, and has also
provided
a general introduction to the regional monitoring mechanisms. These treaties
have
contributed to important changes in the laws of many countries, and, in view of
the
large number of States having ratified, acceded or adhered to them, they are
also
becoming particularly important for the work of judges, prosecutors and lawyers,
who
may have to apply them in the exercise of their professional duties. Many of the
provisions of the general treaties have been extensively interpreted, inter alia
with
regard to the administration of justice and treatment of persons deprived of their
liberty; and this case-law constitutes an important source of information and
guidance
for judges and lawyers.
Lawyers 111
Implementation
.........Chapter 4
INDEPENDENCE AND
IMPARTIALITY OF
JUDGES, PROSECUTORS
AND LAWYERS......................
Learning Objectives
_To consolidate knowledge and understanding of the importance of an
independent
and impartial Judiciary, independent and impartial prosecutors and an
independent
legal profession in order to ensure the rule of law and effective protection
of the
fundamental rights and freedoms of the human person.
_ To familiarize participants with the existing international and regional
legal rules
and principles governing the functioning of the Judiciary, prosecutors and
lawyers,
including the relevant jurisprudence.
Questions
_ How do you, as judges, prosecutors and lawyers, perceive the role of the
principle of
separation of powers?
_ How is this principle ensured in your country?
_ How are the independence and impartiality of the Judiciary and the
independence of
lawyers guaranteed in the country where you carry out your work?
_ Have you ever experienced any difficulties in performing your
professional duties in
an independent and impartial manner?
_ If so, what were those difficulties, and how did you deal with them?
_ More specifically, have you, as judges, prosecutors and lawyers, ever
been confronted
with attempts to corrupt you?
_ If so, how did you deal with such propositions?
Lawyers 113
Questions (cont.d)
_ For those participants who are women jurists, have you, in the course of
your work,
experienced any specific problems, difficulties or harassment that may be
attributable
to your gender?
_ If so, how did you confront the problems, difficulties, or harassment?
_ If you have had to deal with any of the above situations, were you aware
of the
existence of international legal standards aimed at strengthening the role
of the
Judiciary and the legal professions in general that might have been
conducive to
strengthening your position vis-à-vis the Executive, Legislature or other
groups or
persons acting with or without the connivance of the State?
_ Lastly, in your country, would there be any room for you, as judges, to
soften the effect
of repressive laws by means of interpretation?
Relevant Legal Instruments
Universal Instruments
_ The International Covenant on Civil and Political Rights, 1966
*****
_ Basic Principles on the Independence of the Judiciary, 1985
_ Guidelines on the Role of Prosecutors, 1990
_ Basic Principles on the Role of Lawyers, 1990
Regional Instruments
_ The African Charter on Human and Peoples’ Rights, 1981
_ The American Convention on Human Rights, 1969
_ The European Convention on Human Rights, 1950
*****
_Council of Europe Recommendation No. R (94) 12 of the Committee
of Ministers to Member States on the independence, efficiency and role
of judges.1
Chapter 4 • Independence and Impartiality of Judges, Prosecutors and Lawyers
1 In addition to these binding and non-binding legal sources, ethical standards have been adopted by
professional associations
such as judges’, prosecutors’ and lawyers’ associations. Such standards may provide useful guidance to the
legal professions. See e.g.
the following standards adopted by the International Bar Association (IBA): IBA Minimum Standards of
Judicial Independence, 1982;
IBA Standards for the Independence of the Legal Profession, 1990. See also the IBA statement of General
Principles for Ethics of
Lawyers, IBA Resolution on Non-Discrimination in Legal Practice, as well as the IBA paper Judicial Corruption
Identification, Prevention
and Cure of 14 April 2000. These documents can be found at the IBA web site: http://www.ibanet.org.
1. Introduction
This chapter will deal with two of the fundamental pillars of a democratic
society respectful of the rule of law and the effective protection of human rights,
namely, the independence and impartiality of the judiciary and
prosecutors, and
the independence of lawyers. It will first describe the role played by judges,
prosecutors and lawyers in this regard; and secondly, will focus on the various
legal
limitations on, and de facto threats to, the ability of judges, prosecutors and
lawyers to
exercise their professional responsibilities in an independent and impartial
manner.
Finally, this chapter will analyse the existing international legal standards
relating to the
functioning of the legal professions and selected relevant case-law.
2. The Role of Judges, Prosecutors
and Lawyers in Upholding the
Rule of Law, Including Human
Rights Standards
In the modern constitutional State, the principle of an independent Judiciary
has its origin in the theory of separation of powers, whereby the Executive,
Legislature
and Judiciary form three separate branches of government, which, in particular,
constitute a system of mutual checks and balances aimed at preventing abuses
of power
to the detriment of a free society. This independence means that both the
Judiciary as
an institution and also the individual judges deciding particular cases must be
able to
exercise their professional responsibilities without being influenced by the
Executive,
the Legislature or any other inappropriate sources.
Only an independent Judiciary is able to render justice impartially on the
basis of law, thereby also protecting the human rights and fundamental
freedoms of the
individual. For this essential task to be fulfilled efficiently, the public must have
full
confidence in the ability of the Judiciary to carry out its functions in this
independent
and impartial manner. Whenever this confidence begins to be eroded, neither
the
Judiciary as an institution nor individual judges will be able fully to perform this
important task, or at least will not easily be seen to do so.
Consequently, the principle of independence of judges was not invented for
the personal benefit of the judges themselves, but was created to protect human
beings
against abuses of power. It follows that judges cannot act arbitrarily in any way
by
deciding cases according to their own personal preferences, but that their duty
is and
remains to apply the law. In the field of protecting the individual, this also
means that
judges have a responsibility to apply, whenever relevant, domestic and
international
human rights law.
Lawyers 115
A legal system based on respect for the rule of law also needs strong,
independent and impartial prosecutors willing resolutely to investigate and
prosecute
suspected crimes committed against human beings even if these crimes have
been
committed by persons acting in an official capacity.
Unless judges and prosecutors play their respective key roles to the full in
maintaining justice in society, there is a serious risk that a culture of impunity
will take
root, thereby widening the gap between the population in general and the
authorities. If
people encounter problems in securing justice for themselves, they may be
driven to
take the law into their own hands, resulting in a further deterioration in the
administration of justice and, possibly, new outbreaks of violence.2
Lastly, this legal system would not be complete without independent lawyers
who are able to pursue their work freely and without fear of reprisals. Indeed,
independent lawyers play a key role in defending human rights and fundamental
freedoms at all times, a role which, together with that played by independent
and
impartial judges and prosecutors, is indispensable for ensuring that the rule of
law
prevails, and that individual rights are protected effectively.
In this regard it has been pointed out that all special rapporteurs of the United
Nations Commission on Human Rights have emphasized the close relationship
that
exists between the greater or lesser respect for the due process guarantees of
article 10
of the Universal Declaration of Human Rights and the greater or lesser gravity of
the
violations established.3 Human rights and fundamental freedoms are, in other
words,
“all the better safeguarded to the extent that the judiciary and the legal
professions are
protected from interference and pressure”.4
3. Challenges to the Independence
and Impartiality of the Legal
Professions
In spite of the need for judges, prosecutors and lawyers to exercise their
professional responsibilities in true independence, experience shows that they
are often
subjected to pressures of various kinds aimed at compromising their ability to do
so.
For instance, although the way in which judges are appointed varies from
country to country, there may be a danger to their independence where they are
appointed exclusively by the Executive or Legislature, or even where they are
elected. A
further threat to their independence is posed by lack of security of tenure, as
arises in
countries where judges are generally employed on temporary contracts. Such
insecurity
may make judges more susceptible to inappropriate outside pressure.
Inadequate
2See e.g. UN doc. E/CN.4/2000/3, Report of the Special Rapporteur of the Commission on Human Rights on
extrajudicial, summary or
arbitrary executions, para. 87.
3UN doc. E/CN.4/Sub.2/1993/25, Report on the independence of the judiciary and the protection of
practising lawyers, para. 1.
4Ibid., loc. cit.
remuneration may also constitute a threat to the independence of judges in that
it may
for instance make them more amenable to corruption.
Furthermore, the independence of judges, prosecutors and lawyers is
frequently threatened by the refusal of the Executive to allow them to organize
freely in
professional associations. For instance, where the Executive issues licences to
lawyers
and obliges them to exercise their profession as members of State-run
professional
organizations, they cannot carry out their work independently.
However, judges, prosecutors and lawyers are frequently also subjected to
other kinds of persecution. Such acts may involve public criticism by either the
Executive or Legislature aimed at intimidating the legal professions, but they
also often
take the form of arbitrary detentions and direct threats to their lives, including
killings
and disappearances.5 In some countries the fact of being a woman lawyer further
adds
to the precariousness of the profession. Because of their willingness to take up
the
defence of cases involving the sensitive issue of women’s rights, these lawyers
face
intimidation and violence, sometimes resulting in death.
The threats and attacks described above are not only perpetrated by State
authorities, but are frequently also carried out by private individuals, either
independently or in connivance with bodies such as criminal organizations and
drugs
cartels.
Clearly, unless judges, prosecutors and lawyers are able to exercise their
professional duties freely, independently and impartially, and unless the
Executive and
the Legislature are likewise always prepared to ensure this independence, the
rule of law
will slowly but steadily be eroded, and with it effective protection of the rights of
the
individual. As can be seen, it is the entire structure of a free and democratic
constitutional order that is upheld by an independent and impartial Judiciary,
independent and impartial prosecutors and independent lawyers.
4. International Law and the
Independence and Impartiality
of the Judiciary
4.1 Applicable international law
All general universal and regional human rights instruments guarantee the
right to a fair hearing in civil and criminal proceedings before an independent
and
impartial court or tribunal, and the purpose of this section is to analyse the
meaning of
the terms “independent” and “impartial” in the light of the case-law of the
competent
international monitoring organs. While these treaties as interpreted do not solve
all the
Lawyers 117
5See e.g. UN doc. E/CN.4/2000/61, Report of the Special Rapporteur on the independence of judges and
lawyers, 74 pp.; and Attacks on
Justice – The Harassment and Persecution of Judges and Lawyers (Centre for the Independence of Judges
and Lawyers (CIJL), Geneva),
10th edn., January 1999-February 2000, 499 pp.
problems arising with particular regard to the notion of independence of the
Judiciary,
they do provide a number of essential clarifications.
Of the most important treaties, the International Covenant on Civil and
Political Rights states in its article 14(1) that “all persons shall be equal before
the courts
and tribunals” and further, that “in the determination of any criminal charge
against
him, or of his rights and obligations in a suit of law, everyone shall be entitled
to a
fair and public hearing by a competent, independent and impartial
tribunal
established by law” (emphasis added). The Human Rights Committee has
unambiguously held that “the right to be tried by an independent and impartial
tribunal
is an absolute right that may suffer no exception”.6 It is thus a right that is
applicable
in all circumstances and to all courts, whether ordinary or special.
Second, article 7(1) of the African Charter on Human and Peoples’ Rights
provides that “every individual shall have the right to have his cause heard”, a
right that
comprises, in particular, “(b) the right to be presumed innocent until proved
guilty by a
competent court or tribunal”, as well as “(d) the right to be tried within a
reasonable
time by an impartial court or tribunal” (emphasis added). Furthermore,
according
to article 26 of the Charter, the States parties “shall have the duty to guarantee
the
independence of the Courts”. It is the view of the African Commission on Human
and
Peoples’ Rights that article 7 “should be considered non-derogable” since it
provides
“minimum protection to citizens”.7
Third, article 8(1) of the American Convention on Human Rights provides
that “every person has the right to a hearing, with due guarantees and within a
reasonable time, by a competent, independent, and impartial tribunal,
previously
established by law, in the substantiation of any accusation of a criminal nature
made
against him or for the determination of his rights and obligations of a civil, labor,
fiscal,
or any other nature” (emphasis added).
Lastly, article 6(1) of the European Convention on Human Rights specifies
that “in the determination of his civil rights and obligations or of any criminal
charge
against him, everyone is entitled to a fair and public hearing within a reasonable
time by
an independent and impartial tribunal established by law” (emphasis
added).
Although some countries may not yet have ratified or acceded to any of these
human rights treaties, they are still bound by customary rules of international
law, as
well as by general principles of law, of which the principle of an independent and
impartial judiciary is generally considered to form part. They are thus also bound
by the
fundamental principles laid down in the Universal Declaration of Human Rights,
which
provides in its article 10 that “everyone is entitled in full equality to a fair and
public
hearing by an independent and impartial tribunal, in the determination of his
rights and
obligations and of any criminal charge against him”.
6Communication No. 263/1987, M. Gonzalez del Río v. Peru (Views adopted on 28 October 1992), in UN doc.
GAOR, A/48/40
7ACHPR, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria,
Communication No. 218/98,
decision adopted during the 29th Ordinary session, 23 April – 7 May 2001, p. 3 of the text published on
http://www1.umn.edu/humanrts/africa/comcases/218-98.html; emphasis added.
4.2 Basic Principles on the Independence of the
Judiciary, 1985
In 1985, the Seventh United Nations Congress on the Prevention of Crime
and the Treatment of Offenders adopted the Basic Principles on the
Independence of
the Judiciary, which were subsequently unanimously endorsed by the General
Assembly.8 These principles can therefore be described as being declaratory of
universally accepted views on this matter by the States Members of the United
Nations,
and they have become an important yardstick in assessing the independence of
the
Judiciary in the work of international monitoring organs and non-governmental
organizations (NGOs).
These principles deal with the following subjects: (i) independence of the
Judiciary; (ii) freedom of expression and association; (iii) qualifications, selection
and
training; (iv) conditions of service and tenure; (v) professional secrecy and
immunity;
and (vi) discipline, suspension and removal. Without seeking to be in any sense
exhaustive, the present chapter will deal with some of the significant issues
relating to
the independence and impartiality of the judiciary.
4.3 The notions of independence and impartiality:
links and basic differences
The notions of “independence” and “impartiality” are closely linked, and in
some instances the international control organs have dealt with them jointly. Yet
each
has its specific meaning and requirements, which will be further explained in
more
detail below. Suffice it to indicate at this juncture that the concept of
“independence” is
an expression of the constitutional value of judicial independence and, as stated
by the
Canadian Supreme Court in the case of Valiente v. The Queen, in a passage that
conveys
well the general understanding of the notion of independence of the Judiciary not
only
under Canadian constitutional law but also under international human rights law,
this
notion “connotes not only a state of mind but also a status or relationship to
others –
particularly to the executive branch of government – that rests on objective
conditions
or guarantees”.9 This status or relationship of independence of the Judiciary
“involves
both individual and institutional relationships: the individual independence of a
judge
as reflected in such matters as security of tenure and the institutional
independence of
the court as reflected in its institutional or administrative relationships to the
executive
and legislative branches of government”.10
By contrast, the Supreme Court of Canada described the concept of judicial
“impartiality” as referring to “a state of mind or attitude of the tribunal in
relation to the
issues and the parties in a particular case”.11 This view has also been confirmed
at the
international level, where, for instance, the Human Rights Committee has held
that the
Lawyers 119
8See General Assembly resolutions 40/32 of 29 November 1985 and 40/146 of 13 December 1985.
9See (1985) 2.S.C.R Valiente v. The Queen 673, to be found at
http://www.lexum.umontreal.ca/csc-scc/en/pub/1985/vol2/html/1985scr2_0673.html, at p. 2.
10Ibid., loc. cit.
11Ibid.
notion of “impartiality” in article 14(1) “implies that judges must not harbour
preconceptions about the matter put before them, and that they must not act in
ways
that promote the interests of one of the parties”.12 As to the European Court of
Human
Rights, it considers that the notion of impartiality contains both a subjective
and an
objective element: not only must the tribunal be impartial, in that “no member
of the
tribunal should hold any personal prejudice or bias”, but it must also “be
impartial from
an objective viewpoint”, in that “it must offer guarantees to exclude any
legitimate
doubt in this respect”.13 The European Court thus adds to the more subjective
mental
element of bias the important aspect of availability of guarantees.
4.4 The notion of institutional independence
The notion of institutional independence means that the Judiciary has to be
independent of the other branches of government, namely the Executive and
Parliament. According to Principle 1 of the Basic Principles on the Independence
of the
Judiciary:
“The independence of the judiciary shall be guaranteed by the State and
enshrined in the Constitution or the law of the country. It is the duty of all
governmental and other institutions to respect and observe the
independence of the judiciary.”
Furthermore, according to Principle 7 of the Basic Principles,
“It is the duty of each Member State to provide adequate resources to
enable the judiciary to properly perform its functions.”
In order to secure true independence of the Judiciary from the other two
branches of government, it is necessary for this independence to be guaranteed,
preferably by the Constitution; or, failing this, by other legal provisions.
4.4.1 Independence as to administrative matters
Although international law does not provide details as to how this institutional
independence is to be realized in practice, it is clear that, as a minimum, the
Judiciary
must be able to handle its own administration and matters that concern its
operation in
general. This includes “the assignment of cases to judges within the court to
which they
belong”, a matter which, as stated in Principle 14 of the Basic Principles, “is an
internal
matter of judicial administration”.
12Communication No. 387/1989, Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in UN
doc. GAOR, A/48/40
(vol. II), p. 120, para. 7.2.
13Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 30; for the text see the
Courts’s web site:
http://echr.coe.int.
4.4.2 Independence as to financial matters
As supported by Principle 7 of the Basic Principles, the Judiciary must further
be granted sufficient funds to properly perform its functions. Without adequate
funds,
the Judiciary will not only be unable to perform its functions efficiently, but may
also
become vulnerable to undue outside pressures and corruption. Moreover, there
must
logically be some kind of judicial involvement in the preparation of court
budgets.
However, when it comes to administrative and financial issues, independence
may not always be total, given that the three branches of government, although
in
principle independent of each other, are also by nature in some respects
dependent on
each other, for instance with respect to the appropriation of resources. While this
inherent tension is probably inevitable in a system based on the separation of
powers, it
is essential that in situations where, for instance, Parliament controls the budget
of the
Judiciary, this power is not used to undermine the efficient working of the
latter.14
4.4.3 Independence as to decision-making
Next, as follows from Principle 1 of the Basic Principles, the other branches
of government, including “other institutions”, have the duty “to respect and
observe
the independence of the judiciary”. This means, more importantly, that the
Executive, the Legislature, as well as other authorities, such as the
police, prison,
social and educational authorities, must respect and abide by the
judgements
and decisions of the Judiciary, even when they do not agree with them.
Such
respect for the judicial authority is indispensable for the maintenance
of the rule
of law, including respect for human rights standards, and all branches
of
Government and all State institutions have a duty to prevent any
erosion of this
independent decision-making authority of the Judiciary.
The condition of the Judiciary’s independence as to decision-making is
further supported by Principle 4 of the Basic Principles, according to which:
“There shall not be any inappropriate or unwarranted interference with the
judicial process, nor shall judicial decisions by the courts be subject to
revision. This principle is without prejudice to judicial review or to
mitigation or commutation by competent authorities of sentences imposed
by the judiciary, in accordance with the law.”15
It is not clear whether executive amnesties and pardons would be contrary to
Principle 4, but Governments must in any event always exercise considerable
care in
resorting to such measures, so that any measures of clemency do not subvert
the
independent decision-making power of the Judiciary, thereby undermining the
rule of
law and true respect for human rights standards.
Lawyers 121
14For a discussion of this issue and others, as regards the system in the United States of America, see An
Independent Judiciary,
Report of the American Bar Association Commission on Separation of Powers and Judicial Independence,
published on:
http://www.abanet.org/govaffairs/judiciary/report.html.
15Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe on the
independence, efficiency and
role of judges provides that “decisions of judges should not be the subject of any revision outside any
appeals procedures as provided
for by law” (Principle I.2.a.i.), and that “with the exception of decisions on amnesty, pardon or similar, the
Government or the
administration should not be able to take any decision which invalidates judicial decisions retroactively”
(Principle I.2.a.iv.)
4.4.4 Jurisdictional competence
According to Principle 3 of the Basic Principles, the independent
decision-making power of the Judiciary also comprises “jurisdiction over all
issues of a
judicial nature and ... exclusive authority to decide whether an issue submitted
for its
decision is within its competence as defined by law”.16
This rule of judicial autonomy in the determination of questions of
competence is in fact well established at both national and international levels
and can
also be found, for instance, in article 36(6) of the Statute of the International
Court of
Justice, and, as regards the European Court of Human Rights, in article 32(2) of
the
European Convention on Human Rights.
4.4.5 The right and duty to ensure fair court proceedings and
give reasoned decisions
This issue will be dealt with in subsection 4.5.8 below.
The notion of independence of the Judiciary means, in particular, that:
_ the Judiciary must enjoy institutional independence, in that it
must be independent of the other branches of government, namely, the
Executive and Parliament;
_ the Judiciary must be independent as to internal matters of
judicial administration, including the assignment of cases
to judges within the court to which they belong;
_ the Judiciary must have independence in financial matters and
have sufficient funds to perform their functions efficiently;
_ the Judiciary must be independent as to decision-making:
both the Government and other institutions have the duty to respect
and observe the decisions handed down by the Judiciary;
_ the Judiciary must have jurisdictional competence, which
means that there must be judicial autonomy in the determination of
questions of competence;
_ the Judiciary has both the right and the duty to ensure fair court
proceedings and issue reasoned decisions.
16Recommendation No. R (94) 12 of the Committee of Ministers of the Council of Europe provides that “no
organ other than
the courts themselves should decide on its own competence, as defined by law” (Principle I.2.a.iii).
4.5 The notion of individual independence
It is not only the Judiciary per se, as a branch of government, that must be
independent of the Executive and Parliament; the individual judges, too, have
a right
to enjoy independence in carrying out their professional duties. This
independence
does not mean, of course, that the judges can decide cases on the basis of their
own
whims or preferences: it means, as will be shown below, that they have both a
right
and a duty to decide the cases before them according to the law, free
from fear of
personal criticism or reprisals of any kind, even in situations where
they are
obliged to render judgements in difficult and sensitive cases.
Unfortunately, judges
are not always allowed to carry out their work in this spirit of true independence,
but in
many countries have to suffer undue pressure ranging from inappropriate
personal
criticism and transfer or dismissal to violent and even fatal attacks on their
person.
The independence of the individual judge must be secured in a number of
ways, the most important of which will be described below.
4.5.1 Appointment
International law does not provide any details as to how judges should be
appointed, and the Basic Principles are neutral with regard to the appointment or
election of judges. However, according to Principle 10 of the Basic Principles:
“Persons selected for judicial office shall be individuals of integrity and
ability with appropriate training or qualifications in law. Any method of
judicial selection shall safeguard against judicial appointments for
improper motives. In the selection of judges, there shall be no
discrimination against a person on the grounds of race, colour, sex,
religion, political or other opinion, national or social origin, property, birth
or status, except that a requirement, that a candidate for judicial office must
be a national of the country concerned, shall not be considered
discriminatory.”
This principle means that, irrespective of the method of selection of
judges, candidates’ professional qualifications and their personal
integrity must
constitute the sole criteria for selection. Consequently, judges cannot
lawfully be
appointed or elected because of the political views they hold or because, for
instance,
they profess certain religious beliefs. Such appointments would seriously
undermine
the independence both of the individual judge and of the Judiciary as such,
thereby also
undermining public confidence in the administration of justice.
*****
The Human Rights Committee has expressed concern “that in appearance as
well as in fact” the Judiciary in the Sudan was “not truly independent, ... that
judges can
be subject to pressure through the supervisory authority dominated by the
Government, and that very few non-Muslims or women occupy judicial positions
at all
levels”. It therefore recommended that “measures should be taken to improve
the
independence and technical competence of the judiciary, including the
appointment of
Lawyers 123
qualified judges from among women and members of minorities”.17 The Human
Rights Committee has also recommended to Bolivia that “the nomination of
judges be
based on their competence and not their political affiliation”.18
With regard to Zambia, the Human Rights Committee has expressed concern
about “the proposals made by the Constitutional Review Committee in regard to
the
appointment of judges of the Supreme Court by the President after their
retirement and
the removal of Supreme Court judges by the President, subject only to
ratification by
the National Assembly without any safeguard or inquiry by an independent
judicial
tribunal”. It concluded that such proposals were “incompatible with the
independence
of the judiciary and run counter to article 14 of the Covenant”.19
Consequently, article 14 of the Covenant has not been complied with in cases
where judges are appointed or dismissed by the President without these
decisions
having been taken in consultation with some independent legal authority, even
where
the President’s decisions must be ratified by Parliament.
Likewise, as regards Slovakia the Committee has noted with concern that the
rules in force “governing the appointment of judges by the Government with
approval
of Parliament could have a negative effect on the independence of the judiciary”;
it
recommended that “specific measures be adopted as a matter of priority
guaranteeing
the independence of the judiciary and protecting judges from any form of
political
influence, through the adoption of laws regulating the appointment,
remuneration,
tenure, dismissal and disciplining of members of the judiciary”.20
With regard to the Republic of the Congo, the Committee expressed its
“concern at the attacks on the independence of the judiciary in violation of”
article
14(1), and drew attention to the fact that such independence was “limited owing
to the
lack of any independent mechanism responsible for the recruitment and
discipline of
judges, and to the many pressures and influences, including those of the
executive
branch, to which the judges [were] subjected”.21 It therefore recommended to
the State
party that it should “take the appropriate steps to ensure the independence of
the
judiciary, in particular by amending the rules concerning the composition and
operation
of the Supreme Council of Justice and its effective establishment”.22
Appointments of judges must, in other words, in themselves constitute
a
strong factor for independence and cannot be left to the exclusive
discretion of the
Executive and Legislature.
The question of “lack of full independence of the judiciary” has also arisen in
connection with Kyrgyzstan, when the Committee noted, in particular, “that the
applicable certification procedure for judges, the requirement of re-evaluation
every
seven years, the low level of salaries and the uncertain tenure of judges may
encourage
corruption and bribery”.23
17UN doc. GAOR, A/53/40 (vol. I), para. 132.
19UN doc. GAOR, A/51/40, para. 202.
20UN doc. GAOR, A/52/40 (vol. II), para. 379.
22Ibid., para. 280.
As to the election of certain judges in the United States of America, the Human
Rights Committee noted that it was “concerned about the impact which the
current
system of election of judges may, in a few states, have on the implementation of
the
rights” guaranteed by article 14, and it welcomed “the efforts of a number of
states in
the adoption of a merit-selection system”. It also recommended that the system
of
“appointment of judges through elections be reconsidered with a view to its
replacement by a system of appointment on merit by an independent body”.24
Accordingly, the election of judges would not seem to be compatible with the
notion of independence as set forth in article 14.25
*****
With regard to the Special Military Tribunal in Nigeria, the African
Commission on Human and Peoples’ Rights held that “the selection of serving
military
officers, with little or no knowledge of law as members of the Tribunal” was in
contravention of Principle 10 of the Basic Principles on the Independence of the
Judiciary.26
*****
As to the European Convention on Human Rights, the European Court of
Human Rights has consistently held that
“in order to establish whether a tribunal can be considered ‘independent’
for the purposes of article 6 § 1, regard must be had, inter alia, to the manner
of appointment of its members and their term of office, the existence of
safeguards against outside pressures and the question whether it presents
an appearance of independence”.27
In the case of Lauko, the Court thus held that the applicant’s right to have a
fair hearing by an independent and impartial tribunal under article 6(1) had been
violated. The applicant had been fined for committing a minor offence. This
decision
was imposed by the local office and an appeal rejected by the district office; the
Constitutional Court of Slovakia could not deal with the matter since it was a
minor
offence falling within the competence of the administrative authorities.28 The
Court
noted that the local and district offices were “charged with carrying out local
State
administration under the control of the Government”, and that the appointment
of the
heads of these bodies was controlled by the Executive and their officers, who
had the
Lawyers 125
24UN doc. GAOR, A/50/40, paras. 288 and 301; emphasis added.
25The United Nations Special Rapporteur on the independence of judges and lawyers has emphasized the
importance of adhering
to the objective criteria listed in Principle 10 of the United Nations Basic Principles in connection with the
election and
appointment of judges; see e.g. UN doc. E/CN.4/2000/61/Add.1, Report of the Special Rapporteur on the
independence of judges and lawyers,
Addendum: Report on the mission to Guatemala, paras. 60-64. For concern as to risks that the election of
judges, and, in particular re-election,
pose to the independence of judges, see The Rule of Law and Human Rights: Principles and Definitions
(Geneva, International Commission
of Jurists, 1966), p. 30, para. 2. As to the use of objective criteria in the selection of judges, see also
Principle I.2.c of Council of
Europe Recommendation No. R (94) 12 on the independence, efficiency and role of judges. For general
information on the European
judiciaries, see Judicial Organization in Europe (2000), Strasbourg, Council of Europe Publication, 2000, 352
pp.
26ACHPR, Media Rights v. Nigeria, Communication No. 224/98, decision adopted during the 28th session, 28
October – 6 November 2000,
para. 60 at http://www1.umn.edu/humanrts/africa/comcases/224-98.html.
27Eur. Court HR, Case of Incal v. Turkey, judgment of 9 June 1998, Reports 1998-IV, p. 1571, para. 65.
28Eur. Court HR, Case of Lauko v. Slovakia, judgment of 2 September 1998, Reports 1998-VI, pp. 2497-
2498, paras.12-17.
status of salaried employees.29 It followed that “the manner of appointment of
the
officers of the local and district offices together with the lack of any guarantees
against
outside pressures and any appearance of independence clearly show that those
bodies
[could not] be considered to be ‘independent’ of the executive within the
meaning of”
article 6(1).30 Although the Court added that it is not inconsistent with the
Convention
to entrust “the prosecution and punishment of minor offences to administrative
authorities”, it had “to be stressed that the person concerned must have an
opportunity
to challenge any decision made against him before a tribunal that offers the
guarantees
of Article 6”.31
Since in the present case the applicant was unable to have the decisions of the
local and district offices reviewed by an independent and impartial tribunal, his
rights
under article 6(1)of the Convention had been violated.32
In some situations, however, the notions of independence and impartiality are
closely linked, and, when considering the compatibility with article 6 of the
European
Convention of the National Security Courts in Turkey and the courts martial in
the
United Kingdom, the Court has, as will be seen in subsection 4.7 below,
examined these
notions together. As stated in the case of Incal, for instance, what is of decisive
importance is whether the manner in which the court concerned functioned
“infringed
the applicant’s right to a fair trial”:
“In this respect even appearances may be of a certain importance. What is
at stake is the confidence which the courts in a democratic society must
inspire in the public and above all, as far as criminal proceedings are
concerned, in the accused (...). In deciding whether there is a legitimate
reason to fear that a particular court lacks independence or impartiality, the
standpoint of the accused is important without being decisive. What is
decisive is whether his doubts can be held to be objectively justified (...).”33
*****
The Inter-American Commission on Human Rights has recommended that
the member States of the OAS
“take the steps necessary to protect the integrity and independence of
members of the Judiciary in the performance of their judicial functions,
and specifically in relation to the processing of human rights violations; in
particular, judges must be free to decide matters before them without any
influence, inducements, pressures, threats or interferences, direct or
indirect, for any reason or from any quarter”.34
29Ibid., p. 2506, para. 64.
30Ibid., loc. cit.
31Ibid. at p. 2507.
32Ibid., pp. 2506-2507, paras. 64-65. However, the Court came to a different conclusion in the case of
Stallinger and Kuso, where
expert members were included in the Regional and Supreme Land Reform Boards on account of their
experience of agronomy,
forestry and agriculture: “the adversarial nature of the proceedings before the boards was unaffected by the
participation of the
‘civil-servant experts’”; hence, there was no violation of article 6(1) of the Convention; see Eur. Court HR,
Case of Stallinger and Kuso v.
Austria, judgment of 18 March 1997, Reports 1997-II, p. 677, para. 37.
33Eur. Court HR, Incal judgment of 9 June 1998, Reports 1998-IV, pp. 1572-1573, para. 71.
34OAS doc. OEA/Ser.L/V/II.95, doc. 7 rev., Annual Report of the Inter-American Commission on Human
Rights 1996, p. 761.
In the Constitutional Court case, the Inter-American Court held that the
independence of any judge presupposes an adequate process of appointment
(“un
adecuado proceso de nombramiento”), for a period in the post (“con una
duración en el
cargo”) and with guarantees against external pressures (“con una garantía
contra
presiones externas”).35
4.5.2 Security of tenure
As indicated above, unless judges have some long-term security of tenure,
there is a serious risk that their independence will be compromised, since they
may be
more vulnerable to inappropriate influence in their decision-making. Principle 11
of the
Basic Principles therefore provides that
“The term of office of judges, their independence, security, adequate
remuneration, conditions of service, pensions and the age of retirement
shall be adequately secured by law.”
Principle 12 further specifies that
“Judges, whether appointed or elected, shall have guaranteed tenure until a
mandatory retirement age or the expiry of their term of office, where such
exists.”36
It would consequently be contrary to Principles 11 and 12 to appoint or elect
judges with no guarantee of tenure at all or only a brief period of guaranteed
term of
office.37 It is by providing judges with a permanent mandate that their
independence will be maximized, as will public confidence in the
Judiciary.
*****
With regard to the situation in Armenia, the Human Rights Committee noted
that the independence of the Judiciary was not fully guaranteed, observing, in
particular,
that “the election of judges by popular vote for a fixed maximum term of six
years does
not ensure their independence and impartiality”.38
In some countries judges may be obliged to go through a recertification
procedure at certain intervals in order to be authorized to continue in office.
Faced with
this practice in Peru, the Human Rights Committee noted “with concern that the
judges
retire at the expiration of seven years and require recertification for
reappointment”. It
considered this “a practice which tends to affect the independence of the
Judiciary by
denying security of tenure”.39 The Committee therefore recommended to the
Lawyers 127
35I-A Court HR, Constitutional Court Case (Aguirre Roca, Rey Terry and Revorado Marsano v. Peru),
judgment of 31 January 2001,
para. 75 of the Spanish version of the judgment, which can be found on the Court’s web site:
http://www.corteidh.or.cr/serie_c/C_71_ESP.html.
36Recommendation I.3 of Council of Europe Recommendation No. R (94) 12 is identical to Principle 12.
37The Special Rapporteur on the independence of judges and lawyers has held that while “fixed-term
contracts may not be
objectionable and not inconsistent with the principle of judicial independence, a term of five years is too
short for security of tenure”.
In his view “a reasonable term would be 10 years”; UN doc. E/CN.4/2000/61/Add.1, Report on the Mission to
Guatemala, para. 169(c).
39UN doc. GAOR, A/51/40, para. 352.
Government that “the requirement for judges to be recertified be reviewed and
replaced by a system of secure tenure and independent judicial supervision”.40
The question of review was also at issue with regard to Lithuania, and the
Committee was concerned that, although there were “new provisions aimed at
ensuring
the independence of the judiciary, District Court judges must still undergo a
review by
the executive after five years of service in order to secure permanent
appointment”.
Consequently, it recommended that “any such review process should be
concerned
only with judicial competence and should be carried out only by an independent
professional body”.41
It follows that, in the view of the Human Rights Committee, the practice of
executive recertification or review of judges is contrary to article 14(1) of the
International Covenant on Civil and Political Rights.
4.5.3 Financial security
The international and regional treaties do not expressly deal with the question
of financial security for the Judiciary and individual judges, but Principle 11 of the
Basic
Principles quoted above provides that judges shall have adequate remuneration
and
also pensions.
The question of fair and adequate remuneration is important since it may help
attract qualified persons to the bench and may also make judges less likely to
yield to the
temptation of corruption and political or other undue influences. In some
countries
judges’ salaries are protected against decreases, although pay increases may
depend on
the Executive and Legislature. Where the Executive and Legislature control the
budgets of the Judiciary, there may be a potential threat to the latter’s
independence.
In the case of Manitoba Provincial Judges Assn. v. Manitoba (Minister of Justice),
the
Canadian Supreme Court had to decide “whether and how the guarantee of
judicial
independence in s. 11(d) of the Canadian Charter of Rights and Freedoms
restricts the
manner by and extent to which provincial governments and legislatures can
reduce the
salaries of provincial court judges”.42 As part of its budget deficit reduction plan,
the
Province had enacted the Public Sector Pay Reduction Act whereby it reduced
the
salaries of Provincial Court judges and others paid from the public purse in the
province. Following these pay reductions, numerous accused persons challenged
the
constitutionality of their proceedings in the Provincial Court, alleging that, as a
result of
the salary reductions, the court had lost its status as an independent and
impartial
tribunal. The Supreme Court concluded that the salary reductions “as part of an
overall
public economic measure were consistent with s. 11(d) of the Charter”, as there
was “no
evidence that the reductions were introduced in order to influence or manipulate
the
judiciary”.43 What constituted a violation of judicial independence was, however,
the
refusal of the Manitoba Government to sign a joint recommendation to the
Judicial
Compensation Committee, “unless the judges agreed to forgo their legal
challenge ”of
40Ibid., para. 364.
41See UN doc. GAOR, A/53/40 (vol. 1), para. 173.
42(1997) 3 S.C.R. Manitoba Provincial Judges Assn. v. Manitoba (Minister of Judges) 3, at
http://www.lexum.umontreal.ca/csc-scc/en/pub/1997/vol3/html/1997scr3_0003.html at p. 5.
43Ibid., p. 12.
the law whereby the salary reduction was imposed. The Court considered that
the
Government had thereby “placed economic pressure on the judges so that they
would
concede the constitutionality of the planned salary changes”.44 In its view, “the
financial
security component of judicial independence must include protection of judges’
ability
to challenge legislation implicating their own independence free from the
reasonable
perception that the government might penalize them financially for doing so”.45
4.5.4 Promotion
Principle 13 of the Basic Principles provides that “promotion of judges,
wherever such a system exists, should be based on objective factors, in
particular ability,
integrity and experience”. Improper factors not linked to the professional merits
of the
judges concerned are thus not to be considered for purposes of promotion.46
Such
improper factors might, for instance, include attitudes of discrimination based on
gender, race or ethnicity.47
4.5.5 Accountability
While there is no disagreement about the need for judicial discipline among
judges, the question arises as to how to decide on possible sanctions in cases of
misconduct, who should decide, and what the sanctions should be. It is also
imperative
that judges not be subjected to disciplinary action because of opposition to the
merits
of the case or cases decided by the judge in question.
*****
With regard to Belarus, the Human Rights Committee noted “with concern
the allegation that two judges were dismissed by the President ... on the ground
that in
the discharge of their judicial functions they failed to impose and collect a fine
imposed
by the executive”.48 The Committee was also concerned that the Cambodian
Supreme
Council of the Magistracy was “not independent of government influence” and
that it
had “not yet been able to deal with the allegations of judicial incompetence and
unethical behaviour”. Given its further concern inter alia about the fact that the
Ministry of Justice issued circulars that were binding on judges, the Committee
recommended that the State party “should take urgent measures to strengthen
the
judiciary and to guarantee its independence, and to ensure that all allegations of
corruption or undue pressure on the judiciary are dealt with promptly”.49
Lawyers 129
44Ibid., loc. cit. The Judicial Compensation Committee was a body created by The Provincial Court Act for
the purpose of issuing
reports on judges’ salaries to the legislature.
45Ibid.
46Council of Europe Recommendation No. R (94) 12 emphasizes that “all decisions concerning the selection
and career of judges
should be based on objective criteria” and that not only the selection of judges but also their career “should
be based on merit, having
regard to qualifications, integrity, ability and efficiency”; moreover, decisions regarding the career of judges
should be independent of
both the Government and the administration (principle I.2.c.).
47As to minority representation in the legal profession in the United States, see report by the American Bar
Association
Commission on Racial and Ethnic Diversity in the Profession entitled Miles to Go 2000: Progress of Minorities
in the Legal Profession.
According to this report, minority representation in the legal profession is significantly lower than in most
other professions.
Although mainly devoted to lawyers, the report also contains a subsection on the Judiciary; see
www.abanet.org/minorities.
49UN doc. GAOR, A/54/40 (vol. I), paras. 299-300.
It would thus appear clear that the Human Rights Committee considers that
the term “independent” in article 14(1) of the Covenant requires that unethical
professional behaviour be dealt with by an organ fully independent of
government
influence.
The matter of discipline, suspension and removal of judges is also dealt with in
Principles 17-20 of the United Nations Basic Principles, which read as follows:
“17. A charge or complaint made against a judge in his/her judicial and
professional capacity shall be processed expeditiously and fairly under an
appropriate procedure. The judge shall have the right to a fair hearing. The
examination of the matter at its initial stage shall be kept confidential,
unless otherwise requested by the judge.
18. Judges shall be subject to suspension or removal only for reasons of
incapacity or behaviour that renders them unfit to discharge their duties.
19. All disciplinary, suspension or removal proceedings shall be
determined in accordance with established standards of judicial conduct.
20. Decisions in disciplinary, suspension or removal proceedings
should be subject to an independent review. This principle may not apply
to decisions of the highest court and those of the legislature in
impeachment or similar proceedings.”
It is noteworthy, however, that Principle 17 speaks only of “an appropriate
procedure” and that Principle 20 recommends that decisions in disciplinary and
other
procedures “should be subject to an independent review” (emphasis added). It
would
thus appear that the interpretation of article 14(1) of the International Covenant
on
Civil and Political Rights by the Human Rights Committee goes further than the
Basic
Principles in this respect.50
*****
In a case against Burkina Faso, the African Commission on Human and
Peoples’ Rights had to consider the State’s failure to give any legal reasons to
justify the
retention of the punishment meted out to two magistrates. The two were among
a
number of magistrates who had been suspended, dismissed or forced to retire in
1987.
Many of the persons affected by this measure were subsequently reinstated by
virtue of
an amnesty, while many others, including the two magistrates who were the
subject of
50Principle VI of Council of Europe Recommendation No. R (94) 12 also deals with the failure to carry out
responsibilities and
disciplinary offences, and, depending on legal principles in force and traditions of the States, disciplinary
measures may inter alia
include: 1) withdrawal of cases from the judge; 2) moving the judge to other judicial tasks within the court;
3) economic sanctions
such as a reduction in salary for a temporary period; and 4) suspension (Principle VI.1.). However, appointed
“judges may not be
permanently removed from office without valid reasons until mandatory retirement”, reasons that “should
be defined in precise terms
by the law”. These reasons could also “apply in countries where the judge is elected for a certain period, or
may relate to incapacity to
perform judicial functions, commission of criminal offences or serious infringements of disciplinary rules”
(Principle VI.2). Moreover,
where the measures mentioned in Principles VI.1 and 2 “need to be taken, States should consider setting
up, by law, a special
competent body which has as its task to apply disciplinary sanctions and measures, where they are not
dealt with by a court, and
whose decisions shall be controlled by a superior judicial organ, or which is a superior judicial organ itself”
(emphasis added). The law
should also “provide for appropriate procedures to ensure that judges in question are given at least all the
due process requirements
[of the European Convention on Human Rights], for instance that the case should be heard within a
reasonable time and that they
should have a right to answer any charges” (Principle VI.3).
the case before the Commission, were not so reinstated.51 In the view of the
Commission, this failure constituted a violation of Principles 18 and 19 of the
Basic
Principles on the Independence of the Judiciary.52 As to the refusal by the
Supreme
Court to proceed with the two magistrates’ claims for damages, lodged fifteen
years
earlier, it constituted a violation of article 7(1)(d) of the African Charter, which
guarantees the right to be tried within a reasonable time by an impartial court or
tribunal.53
*****
The Constitutional Court case dealt with by the Inter-American Court of Human
Rights concerned the impeachment and final removal by legislative decisions of
28 May
1997 of three judges from the bench of the Constitutional Court. These decisions
were
a consequence of a complex process that had begun in 1992, when President
Fujimori
dissolved both Congress and the Court of Constitutional Guarantees. In 1996 the
new
Constitutional Court was called upon to examine the constitutionality of a law
that
interpreted article 112 of the Peruvian Constitution regarding presidential re-
elections.
After five of the seven members had found that the relevant law was “non-
applicable”,
although they did not declare it unconstitutional, the judges forming the majority
were
allegedly subjected to a campaign of pressure, intimidation and harassment.54 As
noted
by the Inter-American Court, the removal of the three judges was the result of
the
application of a sanction by the legislative power within the framework of a
political
trial (“juicio político”),55 and the Court concluded unanimously that articles 8 and
25 of
the American Convention on Human Rights had been violated with regard to the
three
former constitutional court judges.
As to article 8 of the Convention, it had been violated since the proceedings of
the political trial to which the three judges were subjected did not ensure due
process
guarantees and, further, since in this specific case the Legislature did not comply
with
the necessary condition of independence and impartiality in conducting the
political
trial of the judges.56 As to the lack of impartiality, it was inter alia due to the fact
that some
of the 40 members of Congress who had addressed a letter to the Constitutional
Court
requesting the Court to decide on the question of the constitutionality of the law
on
presidential elections subsequently participated in the various commissions and
sub-commissions appointed during the impeachment proceedings. Furthermore,
some
of those members taking part in the vote on the removal of the judges were in
fact
expressly prohibited from doing so on the basis of the Rules of Congress.57 With
regard
to the violation of the due process guarantees, the three judges in question had
not received
complete and adequate information as to the charges laid against them and their
access
Lawyers 131
51ACHPR, Mouvement Burkinabé des Droits de l’Homme et des Peuples v. Burkina Faso, Communication No.
204/97, decision adopted during the
29th Ordinary session, 23 April – 7th May 2001, para. 38; for the text see
http://www1.umn.edu/humanrts/africa/comcases/204-97.html.
52Ibid., loc. cit.
53Ibid., para. 40.
54I-A Court HR, Constitutional Court Case, Competence, judgment of September 24, 1999, in OAS doc.
OEA/Ser.L/V/III.47, doc. 6,
Annual Report of the Inter-American Court of Human Rights 1999, para. 2 at pp. 374-378.
55I-A Court HR, Constitutional Court Case (Aguirre Roca, Rey Terry and Revorado Marsano v. Peru),
judgment of 31 January 2001, para. 67 of the
Spanish version of the judgment which can be found on the Court’s web site:
http://www.corteidh.or.cr/serie_c/C_71_ESP.html.
56Ibid., para. 84.
57Ibid., para.78.
to the evidence against them was limited. The time available to them for the
preparation
of their defence was also “extremely short” (“extremadamente corto”). Lastly,
they
were not allowed to question witnesses whose testimony was at the basis of the
decision
of the members of Congress to initiate the impeachment proceedings and their
eventual decision to remove the three judges.58
As to the right to judicial protection laid down in article 25 of the American
Convention, that too had been violated. The three judges had in fact filed writs of
amparo against the decisions to remove them, writs which were considered
unfounded
by the Superior Court of Justice in Lima; these decisions were subsequently
confirmed
by the Constitutional Court.59 According to the Inter-American Court of Human
Rights, the failure of these writs was “due to assessments that were not strictly
judicial”
(“se debe a apreciaciones no estrictamente jurídicas”). It had for instance been
established that the judges of the Constitutional Court who considered the writs
of
amparo were the same persons who participated, or were otherwise involved, in
the
congressional proceedings; consequently, the Constitutional Court did not
comply with
the Inter-American Court’s criteria relating to the impartiality of a judge. It
followed that
the writs filed by the alleged victims were incapable of producing their intended
result
and were doomed to fail, as indeed they did.60
*****
To sum up, the general assertion can be made that, under international law,
judges subjected to disciplinary proceedings must be granted due process before
a
competent, independent and impartial organ which must be – or must be
controlled
by – an authority independent of the Executive. It would however seem that, at
least
under the American Convention on Human Rights, disciplinary proceedings may
be
brought against judges of constitutional courts by the Legislature, provided that
the
organ determining the charges strictly respects the principles of independence
and
impartiality and that the relevant proceedings comply with the due process
guarantees laid down in article 8 of the Convention.
4.5.6 Freedom of expression and association
The rights of judges to freedom of expression and association are essential in a
democratic society respectful of the rule of law and human rights. By being free
to form
associations, judges are better able to defend their independence and other
professional
interests.
Principle 8 of the Basic Principles provides that:
“In accordance with the Universal Declaration of Human Rights,
members of the judiciary are like other citizens entitled to freedom of
expression, belief, association and assembly; provided, however, that in
exercising such rights, judges shall always conduct themselves in such a
58Ibid., para. 83.
59Ibid., paras. 97 and 56.27.
60Ibid., para. 96.
manner as to preserve the dignity of their office and the impartiality and
independence of the judiciary”.61
4.5.7 Training and education
The training and continued education of judges in national and international
human rights law is essential if it is to become a meaningful reality at the
domestic level.
Without such training, implementation of human rights law will remain illusory.
The
Human Rights Committee has on several occasions emphasized the importance
of
providing training in human rights law for judges, other legal professions and law
enforcement officers.62
The Committee has further recommended that the Republic of the Congo
should give “particular attention ... to the training of judges and to the system
governing
their recruitment and discipline, in order to free them from political, financial and
other
pressures, ensure their security of tenure and enable them to render justice
promptly
and impartially”; accordingly, it invited the State party “to adopt effective
measures to
that end and to take the appropriate steps to ensure that more judges are given
adequate
training”.63
Whether educational programmes such as, for instance, “social context
education” should be made mandatory for judges, and, if so, in what way judges
would be
accountable for refusing to participate, is, however, an issue which has given rise
to
debate in Canada.64
The important point to emphasize in this respect is that it is in any event the
Judiciary itself or the independent associations of judges that must ultimately be
responsible for the promotion of the professional education and/or training
concerned
(cf. Principle 9 of the Basic Principles).
4.5.8 The right and duty to ensure fair court proceedings and
give reasoned decisions
The independence of a tribunal is indispensable to fair court proceedings, be
they criminal or civil. As laid down in Principle 6 of the Basic Principles:
“The principle of the independence of the judiciary entitles and requires
the judiciary to ensure that judicial proceedings are conducted fairly and
that the rights of the parties are respected.”
Lawyers 133
61Somewhat more laconically, Council of Europe Recommendation No. R (94) 12 provides in Principle IV that
judges “should be
free to form associations which, either alone or with another body, have the task of safeguarding their
independence and protect their
interest”.
62See, as to Libyan Arab Jamahiriya, UN doc. GAOR, A/54/40 (vol. 1), para. 134; and as to the Sudan, UN
doc. GAOR,
A/53/40 (vol. I), para. 132.
64See speech given by the Rt. Hon. Antonio Lamer, P.C., Chief Justice of Canada, “The Tension Between
Judicial Accountability and
Judicial Independence: A Canadian Perspective” (Singapore Academy of Law Annual Lecture 1996),
published at
www.sal.org.sg/lect96.html, discussion at pp. 8-9. Principle V.3.g of the Council of Europe Recommendation
provides that judges
should have the responsibility “to undergo any necessary training in order to carry out their duties in an
efficient and proper manner”.
As is made clear in subsequent chapters, and in particular Chapter 7 on The
Right to a Fair Trial and Chapter 16 concerning The Administration of Justice
during States of
Emergency, this means that judges have an obligation to decide the cases
before them
according to the law, protect individual rights and freedoms, and constantly
respect the
various procedural rights that exist under domestic and international law.
Further, this
important task has to be carried out without any inappropriate or unwarranted
interference with the judicial process (Principle 4 of the Basic Principles).
*****
The Human Rights Committee expressed concern that the new Judiciary in
Cambodia was susceptible to “bribery and political pressure” and that it was
seeking
“the opinions of the Ministry of Justice in regard to the interpretation of laws and
that
the Ministry issues circulars which are binding on judges”. Consequently, it
recommended that the State party “should take urgent measures to strengthen
the
judiciary and to guarantee its independence, and to ensure that all allegations of
corruption or undue pressure on the judiciary are dealt with promptly”.65
It is further inherent in the notion of a competent, independent and impartial
tribunal that it must give reasons for its decisions. With regard to article 6(1)
of the
European Convention on Human Rights, the European Court held in this respect,
in
the case of Higgins and Others, that this obligation “cannot be understood as
requiring a
detailed answer to every argument”, but that “the extent to which this duty to
give
reasons applies may vary according to the nature of the decision and must be
determined in the light of the circumstances of the case”.66 Where the Court of
Cassation had failed in its judgement to give express and specific explanations
on a
complaint that the Court of Appeal had not been impartial, the Court found a
violation
of article 6(1).67
*****
The Human Rights Committee has examined numerous cases where Jamaican
courts have failed to give reasoned judgements, thereby effectively preventing
the
convicted persons from exercising their right to appeal. However, rather than
examining this issue within the framework of the notion of independence and
impartiality in article 14(1) of the Covenant, the Committee has considered it
under
article 14(3)(c), which guarantees the right to “be tried without undue delay”,
and article
14(5), which safeguards the right of appeal in criminal cases.68
66Eur. Court HR, Case of Higgins and Others v. France, judgment of 19 February 1998, Reports 1998-I, p.
60, para. 42.
67Ibid., p. 61, para. 43.
68See, for example, Communication No. 283/1988, A. Little. v. Jamaica (Views adopted on 1 November
1991, in UN doc. GAOR,
A/47/40, p. 284, para. 9 read in conjunction with p. 283, para. 8.5 (violation of article 14(5) of the Covenant;
no reasoned judgement
issued by the Court of Appeal for more than five years after dismissal); and Communication No. 377/1988,
A. Currie v. Jamaica (Views
adopted on 29 March), in UN doc. GAOR, A/49/49 (vol. II), p. 77, para. 13.5 (violation of both article 14(3)(c)
and (5) for failure of
the Court of Appeal to issue written judgement thirteen years after dismissal of appeal).
The notion of independence of the Judiciary also means that
_ individual judges must enjoy independence in the
performance of their professional duties; individual judges
have a right and a duty to decide cases before them according to law,
free from outside interference including the threat of reprisals and
personal criticism;
_ individual judges must be appointed or elected exclusively on the
basis of their professional qualifications and personal
integrity;
_ individual judges must enjoy long-term security of tenure;
_ individual judges must be adequately remunerated;
_ the promotion of individual judges must be based on
objective factors;
_ the question of accountability of individual judges for
unethical professional behaviour must be dealt with by a fully
independent and impartial organ ensuring due process of law.
4.6 The notion of impartiality
As previously noted, the concept of impartiality is closely linked to that of
independence and sometimes the two notions are considered together. The
requirement of impartiality is contained in article 14(1) of the International
Covenant
on Civil and Political Rights, article 7(1) of the African Charter of Human and
Peoples’
Rights, article 8(1) of the American Convention on Human Rights and article 6(1)
of
the European Convention on Human Rights.
Principle 2 of the Basic Principles also specifies that
“The judiciary shall decide matters before them impartially, on the basis of
facts and in accordance with the law, without any restrictions, improper
influences, inducements, pressures, threats or interferences, direct or
indirect, from any quarter or for any reason.”
*****
In the case of Arvo O. Karttunen, the Human Rights Committee explained that
“the impartiality of the court and the publicity of proceedings are important
aspects of
the right to a fair trial” within the meaning of article 14(1) of the Covenant,
adding that
the notion of impartiality “implies that judges must not harbour preconceptions
about
the matter put before them, and that they must not act in ways that promote the
interests of one of the parties”.69 It specified that, “where the grounds for
disqualification of a judge are laid down by law, it is incumbent upon the court to
Lawyers 135
69Communication No. 387/1989, Arvo O. Karttunen v. Finland (Views adopted on 23 October 1992), in UN
doc. GAOR, A/48/40
(vol. II), p. 120, para. 7.2.
consider ex officio these grounds and to replace members of the court falling
under the
disqualification criteria. ... A trial flawed by the participation of a judge who,
under
domestic statutes, should have been disqualified cannot normally be considered
to be
fair or impartial within the meaning of article 14”.70 In this particular case, the
Finnish
Court of Appeal had considered, on the basis of only written evidence, that the
verdict
of the District Court “had not been influenced by the presence of lay judge V. S.,
while
admitting that V. S. manifestly should have been disqualified”.71 The lay judge
had
made some allegedly improper remarks during the testimony given by the
author’s wife,
remarks that, as admitted by the Government itself, “could very well have
influenced
the procurement of evidence and the content of the court’s decision”.72 The
Committee concluded that, in the absence of oral proceedings before the Court
of
Appeal, which was the only means of determining “whether the procedural flaw
had
indeed affected the verdict of the District Court”, there had been a violation of
article
14.73
As further emphasized by the Human Rights Committee, in addressing a
jury, the presiding judge must not give instructions that are either arbitrary,
amount to
a denial of justice, or violate his obligations of impartiality.74
*****
In the case concerning the Constitutional Rights Project, the African Commission
on Human and Peoples’ Rights had, inter alia, to consider the compatibility with
article
7(1)(d) of the African Charter on Human and Peoples’ Rights of the Civil
Disturbances
(Special Tribunal) Act, under the terms of which that tribunal should consist of
one
judge and four members of the armed forces. In the view of the Commission, the
tribunal was as such “composed of persons belonging largely to the executive
branch of
government, the same branch that passed the Civil Disturbance Act”.75 The
Commission then recalled that article 7(1)(d) of the Charter “requires the court
or
tribunal to be impartial”, adding that, “regardless of the character of the
individual
members of such tribunals, its composition alone creates the appearance, if not
actual
lack, of impartiality”. Consequently, there had been a violation of the said
provision in
this case.76
*****
70Ibid., loc. cit.
71Ibid., p. 120, para. 7.3.
72Ibid., p. 117, para. 2.3 and p. 119, para. 6.3 read together.
73Ibid., p. 120, para. 7.3.
74Communication No. 731/1996, M. Robinson v. Jamaica (Views adopted on 29 March 2000), in UN doc.
GAOR, A/55/40 (vol.
II), para. 9.4 at p. 128; in this particular case there was no evidence “to show that the trial judge’s
instructions or the conduct of the
trial suffered from any such defects”.
75ACHPR, Constitutional Rights Project v. Nigeria, Communication No. 87/93, para. 13; for the text of the
judgment, see e.g.
http://www1.umn.edu/humanrts/africa/comcases/87-93.html. See also ACHPR, International Pen,
Constitutional Rights Project, Interights on
behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation v. Nigeria, Communications Nos. 137/94,
139/94, 154/96 and 161/97, decision of
1 October 1998, para. 86; for the text see http://www1.umn.edu/humanrts/africa/comcases/137-94_139-
94_154-96_161-97.html.
76Ibid., para. 14.
As to the requirement of impartiality in article 6(1) of the European
Convention on Human Rights, the European Court of Human Rights has
consistently
ruled that it has two requirements, namely, one subjective and one objective
requirement. In the first place, “the tribunal must be subjectively impartial”,
in that
“no member of the tribunal should hold any personal prejudice or bias”, and this
personal “impartiality is presumed unless there is evidence to the contrary”.77
Secondly,
“the tribunal must also be impartial from an objective viewpoint”, in that “it must
offer
guarantees to exclude any legitimate doubt in this respect”.78 With regard to the
objective test, the Court added that it must be determined whether there are
ascertainable facts, which may raise doubts as to the impartiality of the judges,
and that,
in this respect, “even appearances may be of a certain importance”, because
“what is at
stake is the confidence which the courts in a democratic society must inspire in
the
public and above all in the parties to the proceedings”.79
Thus, in the case of Oberschlick, the European Court concluded that article 6(1)
had been violated for lack of impartiality since a judge who had taken part in a
decision
quashing an order dismissing criminal proceedings subsequently sat in the
hearing of an
appeal against the applicant’s conviction.80 The possibility exists, nevertheless,
“that a
higher or the highest tribunal may, in some circumstances, make reparation for
an initial
violation of one of the Convention’s provisions”.81 However, this is only possible
where the subsequent control is exercised by a judicial body having “full
jurisdiction”
and providing the guarantees foreseen by article 6(1).82 Issues that may be of
relevance
to assess the adequacy of the review, on a point of law for instance, may be “the
subject
matter of the decision appealed against, the manner in which that decision was
arrived
at, and the contents of the dispute, including the desired and actual grounds of
appeal”.83 Where the higher court does not have full jurisdiction to make such
review,
the Court has found a violation of article 6(1).84
In the case of Daktaras, the Court concluded that article 6(1) had been violated
because the applicant’s doubts as to the impartiality of the Lithuanian Supreme
Court
“may be said to have been objectively justified”.85 In this case, the President of
the
Criminal Division of the Supreme Court had lodged a petition for cassation with
the
judges of that Division, at the request of the judge at first instance, who was
dissatisfied
with the judgement of the Court of Appeal. The President proposed that the
appellate
decision be quashed but the same President also appointed the Judge
Rapporteur and
constituted the chamber that was to examine the case. The President’s cassation
petition was endorsed at the hearing by the prosecution and finally accepted by
the
Lawyers 137
77Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 30; emphasis added.
78Ibid., loc. cit.
79Ibid., para. 32.
80Eur. Court HR, Case of Oberschlick v. Austria (1), judgment of 23 may 1991, Series A, No. 204, p. 13, para.
16 and p. 15 para. 22. For
similar cases, see also Eur. Court HR, Case of Castillo Algar v. Spain, judgment of 28 October 1998, Reports
1998-VIII, p. 3124 ff. and Eur.
Court HR, the Case of de Haan v. the Netherlands, judgment of 26 August 1997, Reports 1997-IV, p. 1379 ff.
81Eur. Court HR, Case of de Haan v. the Netherlands, judgment of 26 August 1997, Reports 1997-IV, p.
1393, para. 54.
82Eur. Court HR, Case of Kingsley v. the United Kingdom, judgment of 7 November 2000, para. 51; for the
text of the judgment, see
http://www.echr.coe.int/.
83Eur. Court HR, Case of Bryan v. the United Kingdom, judgment of 22 November 1995, Series A, No. 335-A,
p. 17, para. 45.
84Eur. Court HR, Kingsley v. the United Kingdom, judgment of 7 November 2000, para. 59.
85Eur. Court HR, Case of Daktaras v. Lithuania, judgment of 10 October 2000, para. 38; emphasis added.
Supreme Court. As to the subjective test, there was no evidence of personal
bias of
the individual judges of the Supreme Court,86 but, under the objective test, the
conclusion was different. In the view of the Court, the legal opinion given by the
President in submitting a cassation petition could not be regarded as neutral
from the
parties’ point of view, since, “by recommending that a particular decision be
adopted or
quashed, [he] necessarily becomes the defendant’s ally or opponent”.87 The
European
Court added that, “when the President of the Criminal Division not only takes up
the
prosecution case but also, in addition to his organisational and managerial
functions,
constitutes the court, it cannot be said that, from an objective standpoint, there
are
sufficient guarantees to exclude any legitimate doubt as to the absence of
inappropriate
pressure”. Further, the fact that the President’s intervention was prompted by
the judge
at first instance only aggravated the situation.88
The notion of impartiality is also applicable to jurors, and, in the case of
Sander, the European Court found a violation of article 6(1) after a juror had
made racist
remarks and jokes and the judge’s subsequent direction had failed to dispel the
reasonable impression and fear of a lack of impartiality. The Court accepted that,
“although discharging the jury may not always be the only means to achieve a
fair trial,
there are certain circumstances where this is required by Article 6 § 1 of the
Convention”.89 In this particular case, “the judge was faced with a serious
allegation
that the applicant risked being condemned because of his ethnic origin”, and,
moreover, “one of the jurors indirectly admitted to making racist comments”;
given
“the importance attached by all Contracting States to the need to combat
racism”, the
Court considered “that the judge should have acted in a more robust manner
than
merely seeking vague assurances that the jurors could set aside their prejudices
and try
the case solely on the evidence”.90 It concluded that, “by failing to do so, the
judge did
not provide sufficient guarantees to exclude any objectively justified or
legitimate
doubts as to the impartiality of the court”, which was not, consequently,
“impartial
from an objective point of view”.91
In a second case concerning a juror who had allegedly uttered a racist slur, the
Court also emphasized that article 6(1) of the Convention “imposes an obligation
on
every national court to check whether, as constituted, it is ‘an impartial tribunal’
within
the meaning of that provision ... [where] this is disputed on a ground that does
not
immediately appear to be manifestly devoid of merit”.92 In the case of Remli the
court
concerned had not made such a check, and, consequently, the applicant had
been
deprived “of the possibility of remedying, if it proved necessary, a situation
contrary to
the requirements of the Convention”.93
86Ibid., para. 31.
87Ibid., para. 35.
88Ibid., para. 36.
89Eur. Court HR, Case of Sander v. the United Kingdom, judgment of 9 May 2000, para. 34; for the text of
the judgment, see
http://www.echr.coe.int/.
90Ibid., loc. cit.
91Ibid. For other cases involving the notion of impartiality, see e.g., Eur. Court HR, Case of Diennet v.
France, judgment of 26 September
1995, Series A, No. 325-A (no violation); and the cases mentioned under the section dealing with “Military
and other special courts or
tribunals”.
92Eur. Court HR, Case of Remli v. France, judgment of 30 March 1996, Reports 1996-II, p. 574, para. 48.
93Ibid., loc. cit.
The notion of impartiality of the judiciary is an essential aspect of
the right to a fair trial. It means that all the judges involved must act
objectively and base their decisions on the relevant facts and applicable
law,
without personal bias or preconceived ideas on the matter and persons
involved and without promoting the interests of any one of the parties.
4.7 Military and other special courts and tribunals
The creation in special situations of military courts or other courts of special
jurisdiction such as State Security Courts is commonplace and often gives rise to
violations of the right to due process of law. While the international treaties
examined
in this Manual do not draw any express distinction between ordinary and special,
including military, tribunals, the Human Rights Committee made it clear in its
General
Comment No. 13 that the provisions of article 14 of the Covenant “apply to all
courts
and tribunals within the scope of that article whether ordinary or specialized”.94
This
means, for instance, that likewise, military or other special tribunals which try
civilians
must comply with the condition of independence and impartiality. The
Committee
admitted that this could cause a problem, since “quite often the reason for the
establishment of such courts is to enable exceptional procedures to be applied
which do
not comply with normal standards of justice”.95 Yet, “while the Covenant does
not
prohibit such categories of courts, nevertheless the conditions which it lays down
clearly indicate that the trying of civilians by such courts should be very
exceptional and
take place under conditions which genuinely afford the full guarantees stipulated
in
article 14”.96
In the case of R. Espinoza de Polay, the Human Rights Committee further
expressed the view that special tribunals composed of anonymous, so called
“faceless”,
judges are not compatible with article 14, because they “fail to guarantee a
cardinal
aspect of a fair trial within the meaning of article 14”, namely, “that the tribunal
must
be, and be seen to be, independent and impartial”.97 It added that, “in a system
of trial
by ‘faceless judges’, neither the independence nor the impartiality of the judges
is
guaranteed, since the tribunal, being established ad hoc, may comprise serving
members of the armed forces”.98 The Committee has also severely criticized the
system
of trial of civilians by “faceless judges” in a military court during the
consideration of
Peru’s periodic reports, since it was the same military force that detained,
charged and
tried the persons accused of terrorism, without there being any possibility of
review by
a higher independent and impartial court.99 The Committee emphasized “that
trials of
Lawyers 139
94United Nations Compilation of General Comments, p. 123, para. 4.
95Ibid., loc. cit.
96Ibid.
97Communication No. 577/1994, R. Espinoza de Polay v. Peru (Views adopted on 6 November 1997), in UN
doc GAOR, A/53/40
(vol. II), p. 43, para. 8.8.
98Ibid., loc. cit. In the view of the Committee this system also “fails to safeguard the presumption of
innocence as guaranteed by”
article 14(2), ibid. See also Communication No. 688/1996, C. T. Arredondo v. Peru, (Views adopted on 27
July 2000), in UN doc.
GAOR, A/55/40 (vol. II) p. 60, para. 10.5.
99UN doc. GAOR, A/51/40, p. 62, para. 350; see also p. 64, para. 363.
non-military persons should be conducted in civilian courts before an
independent and
impartial judiciary”.100
The Committee further expressed its concern that the Government of Nigeria
had “not abrogated the decrees establishing special tribunals or those revoking
normal
constitutional guarantees of fundamental rights as well as the jurisdiction of the
normal
courts”.101 It emphasized that “all decrees revoking or limiting guarantees of
fundamental rights and freedoms should be abrogated”, and that all “courts and
tribunals must comply with all standards of fair trial and guarantees of justice
prescribed
by article 14 of the Covenant”.102 Similarly, the Committee has noted with
concern that
special courts in Iraq “may impose the death penalty”, although they “do not
provide
for all procedural guarantees required by article 14 of the Covenant, and in
particular
the right of appeal”. It informed the State party in this respect that “Courts
exercising
criminal jurisdiction should not be constituted other than by independent and
impartial
judges, in accordance with article 14, paragraph 1, of the Covenant”; and,
further, that
“the jurisdiction of such courts should be strictly defined by law and all
procedural
safeguards protected by article 14, including the right of appeal, should be fully
respected”.103
The question of military tribunals has also arisen with regard to Cameroon,
with the Committee expressing concern about the jurisdiction of military courts
over
civilians and about the extension of that jurisdiction to offences which are not
per se of
a military nature, for example all offences involving firearms. The Committee
consequently recommended that the State party “should ensure that the
jurisdiction of
military tribunals is limited to military offences committed by military
personnel”.104
With regard to Guatemala the Committee noted that “the wide jurisdiction of the
military courts to hear all cases involving the trial of military personnel and their
powers
to decide cases that belong to the ordinary courts contribute to the impunity
enjoyed by
such personnel and prevent their punishment for serious human rights
violations”. The
Committee consequently informed the State party that it should “amend the law
to
limit the jurisdiction of the military courts to the trial of military personnel who
are
accused of crimes of an exclusively military nature”.105 The same
recommendation was
made to Uzbekistan after the Committee had expressed concern about the
“broad
jurisdiction” of the military courts, which was “not confined to criminal cases
involving
members of the armed forces but also covers civil and criminal cases when, in
the
opinion of the executive, the exceptional circumstances of a particular case do
not allow
the operation of courts of general jurisdiction”.106 After having also considered
with
concern “the broad scope of the jurisdiction of military courts” in Lebanon, the
Committee recommended that the State party “should review the jurisdiction of
the
military courts and transfer the competence of [these] courts, in all trials
concerning
100Ibid., p. 62, para. 350.
101Ibid., p. 51, para. 278.
102Ibid., p. 53, para. 293.
103UN doc. GAOR, A/53/40, pp. 20-21, para. 104.
104UN doc. GAOR, A/55/40 (vol. I), paras. 215-216.
105UN doc. GAOR, A/56/40 (vol. I), p. 96, para. 20.
106Ibid., p. 61, para. 15.
civilians and in all cases concerning the violation of human rights by members of
the
military, to the ordinary courts”.107
*****
The African Commission on Human and Peoples’ Rights concluded that,
inter alia, article 7(1)(d) of the African Charter on Human and Peoples’ Rights
was
violated in a case concerning special tribunals set up in Nigeria by the Robbery
and
Firearms (Special Provisions) Act. These tribunals consisted of three persons,
namely,
one judge, one officer of the army, navy or air force and one officer of the police
force.
As noted by the African Commission, jurisdiction had “thus been transferred from
the
normal courts to a tribunal chiefly composed of persons belonging to the
executive
branch of government, the same branch that passed the Robbery and Firearms
Decree,
whose members do not necessarily possess any legal expertise”. The
Commission then
concluded that such courts violated the condition laid down in article 7(1)(d) of
the
African Charter requiring the court or tribunal to be impartial; “regardless of the
character of the individual members of such tribunals, its composition alone
creates the
appearance, if not actual lack, of impartiality”.108
The question of the compatibility of purely military tribunals with the African
Charter was at issue in the Media Rights Agenda case concerning the secret trial
before a
Special Military Tribunal of Niran Malaolu, editor of an independent Nigerian daily
newspaper, The Diet. The Tribunal sentenced Mr. Malaolu to life imprisonment
after
having found him guilty of treason.109 As to its general position on the issue of
trials of
civilians by Military Tribunals, the African Commission recalled the terms of its
Resolution on the Right to Fair Trial and Legal Assistance in Africa, where it had
held
that:
“‘In many African countries Military Courts and Special Tribunals
exist alongside regular judicial institutions. The purpose of Military
Courts is to determine offences of a purely military nature committed
by military personnel. While exercising this function, Military
Courts are required to respect fair trial standards.’”110
The Commission now added that military courts “should not, in any
circumstances whatsoever, have jurisdiction over civilians. Similarly,
Special
Tribunals should not try offences that fall within the jurisdiction of
regular
courts”.111 The Commission considered, inter alia, that the creation of the
Special
Military Tribunal for the trial of treason and other related offences impinged on
the
independence of the judiciary, inasmuch as such offences were being recognized
in
Lawyers 141
108ACHPR, Constitutional Rights Project (in respect of Wahab Akamu, Gbolahan Adeaga and Others) v.
Nigeria, Communication No. 60/91,
decision adopted on 3 November 1994, 16th session, paras. 36-37; text can be found at
http://www.up.ac.za/chr/; for a similar case, see
ACHPR, Constitutional Rights Project (in respect of Zamani Lekwot and 6 Others) v. Nigeria, Communication
No. 87/93, decision adopted during the
16th session, October 1994, paras. 30-31; for the text, see preceding web site.
109ACHPR, Media Rights Agenda (on behalf of Niran Malaolu) v. Nigeria, Communication No. 224/98,
decision adopted during the 28th session,
23 October – 6 November 2000, paras. 6-8; for the text of the decision, see
110Ibid., para. 62; Commission’s own emphasis.
111Ibid., loc. cit.; emphasis added.
Nigeria as falling within the jurisdiction of the regular courts; and that the trial
before
the Court further violated the right to a fair trial as guaranteed by article 7(1)(d)
of the
African Charter and Principle 5 of the Basic Principles on the Independence of the
Judiciary, which provides that
“Everyone shall have the right to be tried by ordinary courts or tribunals
using established legal procedures. Tribunals that do not use the duly
established procedures of the legal process shall not be created to displace
the jurisdiction belonging to the ordinary courts or judicial tribunals.”
Furthermore, the Tribunal also violated article 26 of the Charter, according to
which the States parties “shall have the duty to guarantee the independence of
the
Courts”.112
Lastly, in a case concerning a Special Military Tribunal set up under the
Nigerian Military Government, the African Commission had to consider the
fairness
of legal proceedings before this court against military officers accused
of offences
punishable in terms ofmilitary discipline. In this case the Commission stated
that it
“... must be clearly understood that the military tribunal here is one under
an undemocratic military regime. In other words, the authority of the
Executive and the Legislature has been subsumed under the military rule.
Far from this suggesting that military rulers have carte blanche to govern at
the whim of a gun, we wish to underscore the fact that the laws of human
rights, justice and fairness must still prevail.”113
It was the view of the Commission, furthermore, that “the provisions of
Article 7 should be considered non-derogable, providing as they do the minimum
protection to citizens and military officers alike, especially under an
unaccountable,
undemocratic military regime”. The Commission thereafter referred to General
Comment No. 13 of the Human Rights Committee, as well as the case-law of the
European Commission of Human Rights, according to which “the purpose of
requiring that courts be ‘established by law’ is that the organization of justice
must not
depend on the discretion of the Executive, but must be regulated by laws
emanating
from parliament”. The African Commission added with regard to military
tribunals that
the “critical factor is whether the process is fair, just and impartial”.114 While
considering that “a military tribunal per se is not offensive to the rights in the
Charter”
and does not imply “an unfair or unjust process”, the Commission made the
point that
“Military Tribunals must be subject to the same requirements of fairness,
openness, and justice, independence, and due process as any other process.
What causes offence is failure to observe basic and fundamental standards
that would ensure fairness.”115
112Ibid., para. 66.
113ACHPR, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v.
Nigeria, Communication No. 218/98,
decision adopted during the 29th Ordinary session, 23 April – 7 May 2001, at p. 3 of the text published at
114Ibid., loc. cit.
115Ibid., p. 6, para. 44.
Since the military tribunal had in this case already failed the independence test,
the Commission did not find it necessary also to decide whether the fact that the
tribunal was presided over by amilitary officer was another violation of the
Charter.116
*****
In its judgment on the merits of the case of Castillo Petruzzi et al., the
Inter-American Court of Human Rights found that the military tribunals that had
tried
the victims for the crimes of treason “did not meet the requirements implicit in
the
guarantees of independence and impartiality that Article 8(1) of the American
Convention recognizes as essentials of due process of law”.117 In 1992 a decree-
law had
extended the competence of military courts to try civilians accused of treason
“regardless of temporal considerations”, while previously they had been allowed
to do
so only when the country was at war abroad. DINCOTE, the National
Counter-Terrorism Bureau, “was given investigative authority, and a summary
proceeding ‘in the theatre of operations’ was conducted, as stipulated in the
Code of
Military Justice”.118 The pertinent parts of the Court’s reasoning read as follows:
“128. ... Transferring jurisdiction from civilian courts to military courts,
thus allowing military courts to try civilians accused of treason, means that
the competent, independent and impartial tribunal previously established
by law is precluded from hearing these cases. In effect, military tribunals
are not the tribunals previously established by law for civilians. Having no
military functions or duties, civilians cannot engage in behaviours that
violate military duties. When a military court takes jurisdiction over a
matter that regular courts should hear, the individual’s right to a hearing by
a competent, independent and impartial tribunal previously established by
law and, a fortiori, his right to due process are violated. That right to due
process, in turn, is intimately linked to the very right of access to the courts.
129. A basic principle of the independence of the Judiciary is that every
person has the right to be heard by regular courts, following procedures
previously established by law. States are not to create ‘tribunals that do not
use the duly established procedures of the legal process ... to displace the
jurisdiction belonging to the ordinary courts or judicial tribunals’.119
130. Under article 8(1) of the American Convention, a presiding judge
must be competent, independent and impartial. In the case under study,
the armed forces, fully engaged in the counter-insurgency struggle, are also
prosecuting persons associated with insurgency groups. This considerably
weakens the impartiality that every judge must have. Moreover, under the
Statute of Military Justice, members of the Supreme Court of Military
Justice, the highest body in the military judiciary, are appointed by the
minister of the pertinent sector. Members of the Supreme Court of
Military Justice also decide who among their subordinates will be
Lawyers 143
116Ibid., loc. cit.
117I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, in OAS doc.
OEA/Ser.L/V/III.47, doc. 6, Annual
Report I-A Court HR 1999, Appendix IX, p. 263, para. 132.
118Ibid., p. 262, para. 127.
119The Court here quoted the United Nations Basic Principles on the Independence of the Judiciary.
promoted and what incentives will be offered to whom; they also assign
functions. This alone is enough to call the independence of the military
judges into serious question”.120
With regard to the fact that the presiding judges were “faceless” the Court
said, more specifically, that in such cases “defendants have no way of knowing
the
identity of their judge and therefore, of assessing their competence”. An
additional
problem was “the fact that the law does not allow these judges to recuse
themselves”.121
In the Genie Lacayo case, however, the Court stated that the fact that it involved
a military court did not per se signify that the human rights guaranteed to the
accusing
party by the Convention were being violated.122 In this particular case, the
applicant had
been “able to participate in the military proceeding, submit evidence, avail
himself of
the appropriate remedies and, lastly, apply for judicial review before the
Supreme Court
of Justice of Nicaragua”; consequently, he could not claim that the application of
the
decrees on military trials had restricted his procedural rights as protected by the
Convention.123 As to the allegation that the decrees concerning military trials
violated
the principle of independence and impartiality of the military tribunals, not only
because of their composition, particularly in the second instance where senior
army
officials were involved, but also because of the possible use of ideological
elements
such as that of “Sandinista juridical conscience” on evaluation of evidence, the
Court felt
that
“... although those provisions were in force when the military case was
heard and ... could have impaired the independence and impartiality of the
military tribunals that heard the case, they were not applied in this specific
Case”.124
On the other hand, the Court admitted that in the military court of first
instance the court had, inter alia, invoked a legal provision in which the
expression
“Sandinista law” was used; however, this term had “only a superficial ideological
connotation” and it had “not been proven that the invoking [thereof had] either
diminished the impartiality and independence of the tribunals or violated Mr.
Raymond
Genie-Peñalba’s procedural rights”.125
In the light of the different reasoning in these two judgments rendered by the
Inter-American Court of Human Rights the question might be raised whether,
with
respect to the second case, it would not have been appropriate to apply the
principle
that justice must not only be done but also be seen to be done.
120Ibid., pp. 262-263, paras. 128-130.
121Ibid., p. 263, para. 133. The Inter-American Commission on Human Rights has also severely criticized the
use of “faceless
judges” in Peru; see OAS doc. OEA/Ser.L/V/II.95, doc. 7 rev., Annual Report of the Inter-American
Commission on Human Rights 1996,
pp. 736-737.
122I-A Court HR, Genie Lacayo Case, judgment of January 29, 1997, in OAS doc. OAS/Ser.L/V/III.39, doc. 5,
Annual Report I-A Court
HR 1997, p. 54, para. 84.
123Ibid., p. 54, para. 85.
124Ibid., p. 54, para. 86.
125Ibid., para. 87.
Lastly, the Inter-American Commission on Human Rights has recommended
that all member States of the OAS
“... take the legislative and other measures necessary, pursuant to article 2
of the American Convention, to ensure that civilians charged with criminal
offences of any kind be tried by ordinary courts which offer all the essential
guarantees of independence and impartiality, and that the jurisdiction of
military tribunals be confined to strictly military offences”.126
*****
While the European Court of Human Rights has decided, with respect to
Turkey, that it considers that “its task is not to determine in abstracto the
necessity for the
establishment of National Security Courts”, it still has the task of examining
whether,
“viewed objectively”, the applicants concerned, being civilians, “had a legitimate
reason
to fear that [the court trying them] lacked independence and impartiality”.127 In
the
Sürek case, among others, the applicant was prosecuted in the Istanbul National
Security Court for disclosing the identity of officials involved in the fight against
terrorism; the Court concluded that it was understandable that he “should have
been
apprehensive about being tried by a bench which included a regular army officer,
who
was a member of the Military Legal Service”.128 It followed that
“he could legitimately fear that the Istanbul National Security Court might
allow itself to be unduly influenced by considerations which had nothing to
do with the nature of the case. In other words, the applicant’s fears as to
that court’s lack of independence and impartiality can be regarded as
objectively justified. The proceedings in the Court of Cassation were not
able to dispel these fears since that court did not have full jurisdiction.”129
As to the trial of army officers by courts martial, the European Court of Human
Rights has in numerous cases had to consider whether such courts in the United
Kingdom have been “independent and impartial” within the meaning of article
6(1) of
the European Convention on Human Rights. In the case of Findlay, for instance, it
concluded that a court martial did not comply with these requirements in view in
particular of the central part played in the prosecution by the convening officer,
who
“decided which charges should be brought and which type of court martial was
most
appropriate”; he further “convened the court martial and appointed its members
and
the prosecuting and defending officers”.130 Furthermore, the court members
appointed
by the convening officer were of subordinate rank to him, and many of these
members,
including the president, “were directly or ultimately under his command”. The
Lawyers 145
126OAS doc. OEA/Ser.L/V/II.95, doc. 7 rev., Annual Report of the Inter-American Commission on Human
Rights 1996, p. 761.
127See e.g. Eur. Court HR, Case of Sürek v. Turkey, judgment of 8 July 1999.
128Ibid., loc. cit.
129Ibid. For similar cases see e.g. Eur. Court HR, Case of Incal v. Turkey, judgment of 9 June 1998, Reports
1998-IV, p. 1547 ff.; Eur.
Court HR, Case of Çiraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VI, p. 3059 ff.; and Eur.
Court HR, Case of Okçuoglu v.
Turkey, judgment of 8 July 1999; for the text of this judgment, see http://www.echr.coe.int.
130Eur. Court HR, Case of Findlay v. the United Kingdom, judgment of 21 January 1997, Reports 1997-I, p.
281, para. 74.
convening officer also “had the power, albeit in prescribed circumstances, to
dissolve
the court martial either before or during the trial”.131 The European Court
concluded
that “in order to maintain confidence in the independence and impartiality of the
court,
appearances may be of importance”, and that, since “the members of the court
martial
... were subordinate in rank to the convening officer and fell within his chain of
command, Mr. Findlay’s doubts about the tribunal’s independence and
impartiality
could be objectively justified”.132
For the European Court of Human Rights it was also of importance that the
convening officer was “confirming officer”, in that “the decision of the court
martial
was not effective until ratified by him, and he had the power to vary the
sentence
imposed as he saw fit”.133 In the view of the Court this competence was
“... contrary to the well-established principle that the power to give a
binding decision which may not be altered by a non-judicial authority is
inherent in the very notion of ‘tribunal’ and can also be seen as a
component of the ‘independence’ required by Article 6 § 1”.134
The fair trial or due process guarantees in international human rights
law, including the condition of independence and impartiality of the
Judiciary, apply with full force to military and other special courts or
tribunals also when trying civilians.
Under the African Charter on Human and Peoples’ Rights, military
tribunals shall under no circumstances try civilians, and special tribunals
shall not deal with cases falling within the jurisdiction of ordinary courts
of law.
Although the Human Rights Committee has not, as such, held that
trials of civilians by military courts would in all circumstances be
unlawful under article 14 of the International Covenant on Civil and
Political Rights, the clear trend is to recommend that the States parties
transfer the competence of such courts in all cases concerning civilians to
the ordinary courts of law.
131Ibid.,p. 282, para. 75.
132Ibid.,para. 76.
133Ibid.,para. 77.
134Ibid.,loc. cit. For similar cases, see e.g. Eur. Court HR, Case of Coyne v. the United Kingdom, judgment
of 24 September 1997,Reports
1997-V, p. 1842 ff., and Eur. Court HR, Case of Cable and Others v. the United Kingdom, judgment of 18
February 1999; see
http://www.echr.coe.int.

Independence of Prosecutors
5.1 Guidelines on the Role of Prosecutors, 1990
The need for strong, independent and impartial prosecutorial authorities for
the effective maintenance of the rule of law and human rights standards has
already
been emphasized in this chapter. While the specific professional duties of
prosecutors
under international human rights law will be further dealt with whenever relevant
in this
Manual, the present section will limit itself to providing an overview of the
contents of
the Guidelines on the Role of Prosecutors, which were adopted by the Eighth
United
Nations Congress on the Prevention of Crime and the Treatment of Offenders in
1990
“to assist Member States in their tasks of securing and promoting the
effectiveness,
impartiality and fairness of prosecutors in criminal proceedings” (final
preambular
paragraph).
This document provides 24 Guidelines covering the following questions:
qualifications, selection and training; status and conditions of service; freedom of
expression and association; role in criminal proceedings; discretionary functions;
alternatives to prosecution; relations with other government agencies or
institutions;
disciplinary proceedings; and observance of the Guidelines.
As noted in the fifth preambular paragraph of the Guidelines as read in
conjunction with the second preambular paragraph, “prosecutors play a crucial
role in
the administration of justice, and rules concerning the performance of their
important
responsibilities should promote their respect and compliance with ... the
principles of
equality before the law, the presumption of innocence and the right to a fair and
public
hearing by an independent and impartial tribunal...” for the purpose of
“contributing to
fair and equitable criminal justice and the effective protection of citizens against
crime”.
5.2 Professional qualifications
Guidelines 1 and 2 provide respectively that “persons selected as prosecutors
shall be individuals of integrity and ability, with appropriate training and
qualifications”,
and that States shall ensure that “selection criteria for prosecutors embody
safeguards
against appointments based on partiality or prejudice” on various stated
grounds,
“except that it shall not be considered discriminatory to require a candidate for
prosecutorial office to be a national of the country concerned”. Further,
according to
Guideline 2(b), States shall ensure that “prosecutors have appropriate education
and
training and should be made aware of the ideals and ethical duties of their office,
of the
constitutional and statutory protections for the rights of the suspect and the
victim, and
of human rights and fundamental freedoms recognized by national and
international
law”.
Lawyers 147
5.3 Status and conditions of service
While prosecutors, “as essential agents of the administration of justice, shall at
all times maintain the honour and dignity of their profession” (Guideline 3),
States
shall, for their part, “ensure that prosecutors are able to perform their
professional
functions without intimidation, hindrance, harassment, improper interference or
unjustified exposure to civil, penal or other liability” (Guideline 4). Furthermore,
“prosecutors and their families shall be physically protected by the authorities
when
their personal safety is threatened as a result of the discharge of prosecutorial
functions” (Guideline 5). The law or published regulations shall, inter alia, set out
“reasonable conditions of service of prosecutors, adequate remuneration”, and,
wherever a system of promotion exists, it “shall be based on objective factors, in
particular professional qualifications, ability, integrity and experience, and
decided
upon in accordance with fair and impartial procedures” (Guidelines 6 and 7).
It is noteworthy that, unlike these Guidelines, the Basic Principles on the
Independence of the Judiciary contain no specific provision concerning the duty
of
States to protect judges’ personal safety when necessary.
5.4 Freedom of expression and association
“Prosecutors like other citizens are entitled to freedom of expression, belief,
association and assembly”, and they have, in particular, “the right to take part in
public
discussion of matters concerning the law, the administration of justice and the
promotion and protection of human rights and to join or form local, national and
international organizations and attend their meetings, without suffering
professional
disadvantage by reason of their lawful action or their membership in a lawful
organization.” However, “in exercising these rights, prosecutors shall always
conduct
themselves in accordance with the law and the recognized standards and ethics
of their
profession” (Guideline 8).
5.5 The role in criminal proceedings
As to its role in criminal proceedings, “the office of prosecutors shall be
strictly separated from judicial functions” (Guideline 10). Furthermore,
prosecutors
“shall perform an active role in criminal proceedings, including institution
of prosecution and, where authorized by law or consistent with local
practice, in the investigation or crime, supervision over the legality of these
investigations, supervision of the execution of court decisions and the
exercise of other functions as representatives of the public interest”
(Guideline 11).
Like judges, prosecutors cannot act according to their own preferences but
are duty-bound to act “in accordance with the law” and to
“perform their duties fairly, consistently and expeditiously, and respect and
protect human dignity and uphold human rights, thus contributing to
ensuring due process and the smooth functioning of the criminal justice
system” (Guideline 12).
In performing their duties, prosecutors shall, inter alia, “carry out their
functions impartially and avoid all political, social, religious, racial, cultural,
sexual or
any other kind of discrimination”, and
“shall give due attention to the prosecution of crimes committed by public
officials, particularly corruption, abuse of power, grave violations of
human rights and other crimes recognized by international law and, where
authorized by law or consistent with local practice, the investigation of
such offences” (Guideline 15).
Prosecutors have a special obligation with regard to “evidence against
suspects that they know or believe on reasonable grounds was obtained through
recourse to unlawful methods, which constitute a grave violation of the suspect’s
human rights, especially involving torture or cruel, inhuman or degrading
treatment or
punishment, or other abuses of human rights”. In situations of this kind they
shall
either “refuse to use such evidence against anyone other than those who used
such
methods, or inform the Court accordingly, and shall take all necessary steps to
ensure
that those responsible for using such methods are brought to justice” (Guideline
16).
The Human Rights Committee expressed concern with regard to France “at
existing procedures of investigation against the police for human rights abuses”
and
also “at the failure or inertia of prosecutors in applying the law to investigating
human
rights violations where law enforcement officers are concerned and at the delays
and
unreasonably lengthy proceedings in investigation and prosecution of alleged
human
rights violations involving law enforcement officers”. It therefore recommended
that
the State party “take appropriate measures fully to guarantee that all
investigations and
prosecutions are undertaken in full compliance with” the provisions of articles
2(3), 9
and 14 of the Covenant.135
5.6 Alternatives to prosecution
The Guidelines concerning alternatives to prosecution, in particular in cases
where the prosecutors are dealing with juveniles (Guidelines 18 and 19) will be
dealt
with in Chapter 10 concerning The Rights of the Child in the Administration of
Justice.
Lawyers 149
5.7 Accountability
Disciplinary proceedings against prosecutors alleged to have “acted in a
manner clearly out of the range of professional standards shall be processed
expeditiously and fairly under appropriate procedures”. Prosecutors “shall have
the
right to a fair hearing”; and, as with respect to judges, the decision “shall be
subject to
independent review”, a requirement that eliminates the possibility of undue
interference by the Executive and strengthens the independence of the
prosecutors
(Guideline 21).
Prosecutors fulfil an essential function in the administration of justice and
must be strictly separated from the Judiciary and the Executive.
Prosecutors must, in particular:
_ be able to perform their professional duties in criminal proceedings in
safety, without hindrance or harassment;
_ act objectively and impartially, respect the principles of equality before
the law, the presumption of innocence and due process guarantees;
_ give due attention to human rights abuses committed by public
officials, including law enforcement officials;
_ not use evidence obtained by unlawful methods which violate human
rights (forced confessions through torture, etc.).
Independence of Lawyers
6.1 Applicable international law
In addition to independent and impartial judges and prosecutors, lawyers
constitute the third fundamental pillar for maintaining the rule of law in a
democratic
society and ensuring the efficient protection of human rights. As stated in the
ninth
preambular paragraph of the Basic Principles on the Role of Lawyers, which were
adopted by the Eighth United Nations Congress on the Prevention of Crime and
the
Treatment of Offenders in 1990:
“... adequate protection of the human rights and fundamental freedoms to
which all persons are entitled, be they economic, social and cultural, or civil
and political, requires that all persons have effective access to legal services
provided by an independent legal profession”.
In order to be able to carry out their professional duties effectively, lawyers
must not only be granted all the due process guarantees afforded by domestic
and
international law, but must also be free from pressures of the kind previously
described
with regard to judges and prosecutors: in other words, a just and efficient
administration of justice requires that lawyers too should be allowed to
work
without being subjected to physical attacks, harassment, corruption,
and other
kinds of intimidation.
The various procedural guarantees contained in international law that allow
lawyers to represent the interests of their clients in an independent and efficient
manner
in civil and criminal proceedings will be considered in other parts of this Manual.
Here,
the analysis will be limited to highlighting some of the main principles contained
in the
Basic Principles on the Role of Lawyers, as well as some statements made, and
cases
decided by, the international monitoring organs concerning the rights of lawyers.
6.2 Duties and responsibilities
Principle 12 of the Basic Principles provides that “lawyers shall at all times
maintain the honour and dignity of their profession as essential agents of the
administration of justice”, and, according to Principle 13, their duties “shall
include:
(a) Advising clients as to their legal rights and obligations, and as to the
working of the legal system in so far as it is relevant to the legal rights and
obligations of the clients;
(b) Assisting clients in every appropriate way, and taking legal action to
protect their interests;
(c) Assisting clients before courts, tribunals or administrative authorities,
where appropriate”.
In “protecting the rights of their clients and in promoting the cause of
justice”, lawyers shall also “seek to uphold human rights and fundamental
freedoms
recognized by national and international law and shall at all times act freely and
diligently in accordance with the law and recognized standards and ethics of the
legal
profession” (Principle 14). Lastly, “lawyers shall always loyally respect the
interests of
their clients” (Principle 15).
6.3. Guarantees for the functioning of lawyers
According to Principle 16 of the Basic Principle on the Role of Lawyers,
“Governments shall ensure that lawyers (a) are able to perform all of their
professional functions without intimidation, hindrance, harassment or
improper interference; (b) are able to travel and to consult with their clients
freely both within their own country and abroad; and (c) shall not suffer, or
be threatened with, prosecution or administrative, economic or other
sanctions for any action taken in accordance with recognized professional
duties, standards and ethics.”
Furthermore, “where the security of lawyers is threatened as a result of
discharging their functions, they shall be adequately safeguarded by the
authorities”
(Principle 17).
Lawyers 151
As already mentioned, every year many lawyers are killed, threatened,
intimidated or harassed in various ways in order to prevail upon them to
relinquish the
defence of clients seeking to claim their rights and freedoms. It is therefore
essential
that Governments do their utmost to protect lawyers against this kind of
interference in
the exercise of their professional duties.
*****
The African Commission has concluded that the right to defence as
guaranteed by article 7(1)(c) of the African Charter on Human and Peoples’
Rights was
violated in a case where two defence teams had been “harassed into quitting the
defence of the accused persons”.136
*****
Another important rule is laid down in Principle 18, according to which
“lawyers shall not be identified with their clients or their clients’ causes as a
result of
discharging their functions”. The question of lawyers’ identification with their
clients
has been dealt with by the Special Rapporteur on the independence of judges
and
lawyers, who in 1998 for instance stated that he viewed “with some concern the
increased number of complaints concerning Governments’ identification of
lawyers
with their clients’ cause”, adding that lawyers “representing accused persons in
politically sensitive cases are often subjected to such accusations”.137 However,
“identifying lawyers with their clients’ causes, unless there is evidence to that
effect,
could be construed as intimidating and harassing the lawyers concerned”.
According to
the Special Rapporteur, “Governments have an obligation to protect such
lawyers from
intimidation and harassment”.138 If Governments have evidence to the effect that
lawyers identify themselves with their clients’ cause, it is, as stressed by the
Special
Rapporteur, “incumbent on [them] to refer the complaints to the appropriate
disciplinary bodies of the legal profession”,139 where, as described below, they
will be
dealt with in accordance with due process of law.
The question of identification of lawyers with their clients is particularly
relevant when they are called upon to represent human rights defenders.
However, here
too lawyers must be given the same guarantees of security enabling them to
carry out
their professional duties independently and efficiently without governmental or
other
undue interference. Again, any alleged professional misconduct should be
referred to
the established independent organs.
With regard to guarantees for the functioning of lawyers, Principle 19 of the
Basic Principles also provides that
136ACHPR, International Pen, Constitutional Rights Project, Interights (on behalf of Ken Saro-Wiwa Jr. And
Civil Liberties Organisation) v.
Nigeria, Communications Nos. 137/94, 139/94, 154/96 and 161/97, decision adopted on 31 October 1998,
para. 101; text of the decision to be
found at the following web site: http://www1.umn.edu/humanrts/africa/comcases/137-94_139-94_154-
96_161-97.html.
137UN doc. E/CN.4/1998/39, Report of the Special Rapporteur on the independence of judges and lawyers,
para. A.1 of the Conclusions.
138Ibid., loc. cit.
139Ibid., para. 2
“No court or administrative authority before whom the right to counsel is
recognized shall refuse to recognize the right of a lawyer to appear before it
for his or her client unless that lawyer has been disqualified in accordance
with national law and practice and in conformity with these principles.”
Lastly, Principle 20 adds that
“Lawyers shall enjoy civil and penal immunity for relevant statements
made in good faith in written or oral pleadings or in their professional
appearances before a court, tribunal or other legal or administrative
authority.”
6.4 Lawyers and fundamental freedoms
Principle 23 of the Basic Principles on the Role of Lawyers provides that
“Lawyers like other citizens are entitled to freedom of expression, belief,
association and assembly. In particular, they shall have the right to take part
in public discussion of matters concerning the law, the administration of
justice and the promotion and protection of human rights and to join or
form local, national or international organizations and attend their
meetings, without suffering professional restrictions by reason of their
lawful action or their membership in a lawful organization. In exercising
these rights, lawyers shall always conduct themselves in accordance with
the law and the recognized standards and ethics of the legal profession.”
Principle 24 further states that lawyers “shall be entitled to form and join
self-governing professional associations to represent their interests, promote
their
continuing education and training and protect their professional integrity”.
Moreover,
according to this principle “the executive body of the professional associations
shall be
elected by its members and shall exercise its functions without external
interference”. It
follows from this principle that these associations shall aim at safeguarding the
professional interests of the lawyers and strengthening the independence of the
legal
profession. As pointed out by the Special Rapporteur, Bar Associations shall not,
consequently, be used “to indulge in partisan politics” whereby they would
compromise “the independence of the legal profession”.140
6.4.1 Executive permission to exercise the legal profession
One of the keys to ensuring the independence of lawyers is to allow them to
work freely without being obliged to obtain clearance or permission from the
Executive
to carry out their work. This view was confirmed by the Human Rights Committee
with
regard to Belarus when it noted with concern “the adoption of the Presidential
Decree
on the Activities of Lawyers and Notaries of 3 May 1997, which gives
competence to
the Ministry of Justice for licensing lawyers and obliges them, in order to be able
to
practise, to be members of a centralized Collegium controlled by the Ministry,
thus
undermining the independence of lawyers”. Stressing that “the independence of
the
judiciary and the legal profession is essential for a sound administration of justice
and
Lawyers 153
140UN doc. E/CN.4/1995/39, Report of the Special Rapporteur on the independence and impartiality of the
judiciary, jurors and assessors and the
independence of lawyers, para. 72.
for the maintenance of democracy and the rule of law”, the Committee urged the
State
party “to take all appropriate measures, including review of the Constitution and
the
laws, in order to ensure that judges and lawyers are independent of any political
or other
external pressure”.141 In this respect the Committee drew the attention of the
State
party to the Basic Principles on the Independence of the Judiciary as well as the
basic
Principles on the Role of Lawyers.142
The Committee has also expressed “serious doubts” both as to the
independence of the Judiciary in the Libyan Arab Jamahiriya and as to “the
liberty of
advocates to exercise their profession freely, without being in the employment of
the
State, and to provide legal services”; it recommended “that measures be taken
to ensure
full compliance with article 14 of the Covenant as well as with United Nations
Basic
Principles on the Independence of the Judiciary and the basic Principles on the
Role of
Lawyers”.143
*****
It is thus beyond doubt that the obligation in some States for lawyers to be in
government employment runs counter to the fair trial guarantees laid down in
article 14 of
the International Covenant on Civil and Political Rights.
6.4.2 The right to peaceful assembly
In the case of Ezelin, the European Court of Human Rights examined the
justifiability of an interference with the entitlement of an avocat in France to
exercise his
right to peaceful assembly. In this particular case, the Court examined the
complaint
under article 11 of the European Convention on Human Rights, which guarantees
the
right to peaceful assembly, as a lex specialis in relation to article 10 of the
Convention,
which secures the right to freedom of expression. The lawyer had been
reprimanded for
taking part in a demonstration in the course of which some unruly incidents
occurred.
He was disciplined for having failed to dissociate himself from these incidents,
although he had not in any way been violent or unruly himself. This conduct was
judged
“inconsistent with the obligations of his profession”.144 The Court examined, “in
the
light of the case as a whole”, whether the reprimand “was proportionate to the
legitimate aim pursued, having regard to the special importance of freedom of
peaceful
assembly and freedom of expression, which are closely linked in this
instance”.145 It
concluded that
“the proportionality principle demands that a balance be struck between
the requirements of the purposes listed in Article 11 § 2 and those of the
free expression of opinions by word, gesture or even silence by persons
assembled on the streets or in other public places. The pursuit of a just
balance must not result in avocats being discouraged, for fear of disciplinary
sanctions, from making clear their beliefs on such occasions”.146
141UN doc. GAOR, A/53/40, para. 150.
142Ibid., loc. cit.
143UN doc. GAOR, A/54/40, para. 134.
144Eur. Court HR, Ezelin v. France judgment of 26 April 1991, Series A, No. 202, p. 20, para. 38.
145Ibid., p. 23, para. 51.
146Ibid., para. 52.
Although “minimal” in this case, the sanction against Mr. Ezelin did “not
appear to have been ‘necessary in a democratic society’” and therefore violated
article
11 of the Convention.147 The European Court of Human Rights consequently
construes very strictly the possibilities for the States parties to limit the exercise
of the
right to peaceful assembly, even in the case of lawyers.
6.4.3 The right to freedom of association
In a case against Nigeria, the African Commission on Human and Peoples’
Rights had to consider whether the Legal Practitioners (Amendment) Decree,
1993,
was consistent with the terms of the African Charter on Human and Peoples’
Rights.
This decree established a new governing body of the Nigerian Bar Association; of
the
total of 128 members of this organ, called the Body of Benchers, only 31 were
nominees of the Bar Association while the other members were nominated by
the
Government.148
As pointed out by the Commission, the Body of Benchers was “dominated by
representatives of the government” and had “wide discretionary powers, among
them
the disciplining of lawyers”; as “an association of lawyers legally independent of
the
government, the Nigerian Bar Association should be able to choose its own
governing
body”. The Commission added that “interference with the self-governance of the
Bar
Association may limit or negate the reasons for which lawyers desire in the first
place to
form an association”.149 The Commission next pointed out that it had
“... resolved several years ago that, where regulation of the right to freedom
of association is necessary, the competent authorities should not enact
provisions which limit the exercise of this freedom or are against
obligations under the Charter. The competent authorities should not
override constitutional provisions or undermine fundamental rights
guaranteed by the constitution and international human rights
instruments”.150
In the present case, the Government intervention in the governing of the
Nigerian Bar Association was “inconsistent with the preamble of the African
Charter,
where states reaffirm adherence to the principles of human and peoples’ rights
contained in declarations such as the UN Principles on the Independence of the
judiciary and thereby constitutes a violation of Article 10 of the African Charter”,
which
guarantees the right to freedom of association.151
Lawyers 155
147Ibid., para. 53.
148ACHPR, Civil Liberties Organisation v. Nigeria (in respect of the Nigerian Bar Association),
Communication No. 101/93, decision adopted
during the 17th Ordinary session, March 1995, para, 1; for the text of the decision, see
http://www.up.ac.za/chr/.
149Ibid., para. 24.
150Ibid., para. 25; footnote omitted.
6.4.4 The right to freedom of expression
In the case of Schöpfer, the European Court of Human Rights arrived at the
conclusion that there had been no violation of article 10 of the European
Convention
on Human Rights when the Lawyers’ Supervisory Board in the Canton of Lucerne,
Switzerland, imposed a fine of 500 Swiss francs on the applicant for breach of
professional ethics after he had called a press conference at which he criticized
the
actions of a district prefect and two district clerks in a pending case in which he
was
involved. The Court confirmed its previous jurisprudence according to which “the
special status of lawyers gives them a central position in the administration of
justice as
intermediaries between the public and the courts”, adding that “such a position
explains the usual restrictions on the conduct of members of the Bar”.152
Considering
that “the courts – the guarantors of justice, whose role is fundamental in a State
based
on the rule of law – must enjoy public confidence”, and, having regard,
furthermore, to
“the key role of lawyers in this field, it is legitimate to expect them to contribute
to the
proper administration of justice, and thus to maintain public confidence
therein”.153
Quite significantly, it emphasized that
“It also goes without saying that freedom of expression is secured to
lawyers too, who are certainly entitled to comment in public on the
administration of justice, but their criticism must not overstep certain
bounds. In that connection, account must be taken of the need to strike the
right balance between the various interests involved, which include the
public’s right to receive information about questions arising from judicial
decisions, the requirements of the proper administration of justice and the
dignity of the legal profession... . Because of their direct, continuous
contact with their members, the Bar authorities and a country’s courts are
in a better position than an international court to determine how, at a given
time, the right balance can be struck. That is why they have a certain margin
of appreciation in assessing the necessity of an interference in this area, but
this margin is subject to European supervision as regards both the relevant
rules and the decisions applying them”.154
The Court concluded in this case that, in imposing a fine of “modest amount”,
the authorities had not gone beyond their margin of appreciation in punishing
the
lawyer. It noted that the lawyer had in this case “raised in public his complaints
on the
subject of criminal proceedings which were at that time pending before a
criminal
court”, and, “in addition to the general nature, the seriousness and the tone of
the
applicant’s assertions”, he had “first held a press conference, claiming that this
was his
last resort, and only afterwards lodged an appeal before the Lucerne Court of
Appeal,
which was partly successful”; lastly, he had also failed to apply to the
prosecutor’s
office, “whose ineffectiveness he did not attempt to establish except by means
of mere
assertions”.155
152Eur. Court HR, Schöpfer case v. Switzerland, judgment of 20 May 1998, Reports 1998-III, p. 1052, para.
29.
153Ibid. p. 1053.
154Ibid., pp. 1053-1054, para. 33.
155Ibid., p. 1054, para. 34.
6.5 Codes of professional discipline

With regard to professional discipline, Principle 26 of the Basic Principles
provides that
“Codes of professional conduct for lawyers shall be established by the legal
profession through its appropriate organs, or by legislation, in accordance
with national law and custom and recognized international standards and
norms.”
Complaints against lawyers “shall be processed expeditiously and fairly under
appropriate procedures”, and lawyers “shall have the right to a fair hearing,
including
the right to be assisted by a lawyer of their choice” (Principle 27). Furthermore,
“disciplinary proceedings against lawyers shall be brought before an impartial
disciplinary committee established by the legal profession, before an
independent
statutory authority, or before a court, and shall be subject to an independent
judicial
review” (Principle 28). Finally, all such proceedings “shall be determined in
accordance
with the code of professional conduct and other recognized standards and ethics
of the
legal profession and in the light of these principles” (Principle 29).
It follows from these principles that any disciplinary proceedings against
lawyers who are accused of having failed to conduct themselves in accordance
with the
recognized standards and ethics of their profession must be truly independent of
the
Executive and guarantee due process in the course of the proceedings.
Lawyers constitute a fundamental pillar for maintaining the rule of law
and ensuring the effective protection of human rights. In order to be able
to fulfil their professional duties, lawyers must, in particular:
_ be able to work in true independence, free from external political or
other pressure, threats and harassment; e.g., they shall not have to
obtain Executive permission to exercise their professional duties;
_ be ensured due process guarantees, which include the legal right and
duty to advise and assist their clients in every appropriate way in order
to protect their interests;
_ be able to act to uphold nationally and internationally recognized
human rights;
_ be allowed to answer for violations of rules of professional conduct
before an independent disciplinary board respecting due process
guarantees.
Lawyers also enjoy the fundamental freedoms of association, assembly
and expression.
Lawyers 157
As emphasized throughout this chapter, judges, prosecutors and lawyers are
three professional groups that play a crucial role in the administration of justice
and in
the prevention of impunity for human rights violations. They are consequently
also
essential for the preservation of a democratic society and the maintenance of a
just rule
of law. It is therefore indispensable that States assume their international legal
duties
derived from the various sources of international law, whereby they must permit
judges, prosecutors and lawyers to carry out their professional responsibilities
independently and impartially without undue interference from the Executive,
Legislature or private groups or individuals. States’ duty to secure the
independence and
impartiality of judges and prosecutors and the independence of lawyers is not
necessarily fulfilled by passively allowing these professions to go about their
business:
through having a legal obligation to ensure their independence, States may have
to take
positive actions to protect judges, lawyers, and prosecutors against violence,
intimidation, hindrance, harassment or other improper interference so as to
enable
them to perform all their professional functions effectively.
In situations where judges, prosecutors and lawyers are either unwilling or
unable fully to assume their responsibilities, inter alia of investigation and
instituting
criminal proceedings against public officials suspected of corruption and serious
human rights violations, the rule of law cannot be maintained and human rights
cannot
be enforced. It is not only individuals who will suffer in such a situation: it is the
entire
free and democratic constitutional order of the State concerned that will
ultimately be
in jeopardy.
.........Chapter 5
HUMAN RIGHTS
AND ARREST,
PRE-TRIAL DETENTION
AND ADMINISTRATIVE
DETENTION ..........................
Learning Objectives
_ To familiarize participants with existing international legal standards
regarding the
right to liberty and security of the person and which protect human rights
both in
connection with and during arrest, pre-trial detention and administrative
detention;
_ To illustrate how the various legal guarantees are enforced in practice in
order to
protect the rights of detained persons and their legal counsel;
_ To explain what legal measures and/or actions judges, prosecutors and
lawyers must
take in order to safeguard the rights of the persons arrested or detained.
Questions
_ On what basis can persons be detained on remand in your country, and
what
alternatives to such detention are available pending trial?
_ For how long can people be deprived of their liberty in your country
before they must
be brought before a judge in order to have the legality of their deprivation
of liberty
determined?
_ How does the law in the country where you work as judges, prosecutors
or lawyers
protect individuals against unlawful or arbitrary arrests and detention?
_ Do illegal or arbitrary arrests and detentions occur in the country where
you exercise
your professional responsibilities?
_ If faced with an arrest and detention that appears to be unlawful or
arbitrary, what
would you do about it, and what could you do about it, given the present
status of the
law in the country where you work?
Lawyers 159
Questions (cont.d)
_ What remedies exist in your country for persons who consider that they
are
unlawfully or arbitrarily deprived of their liberty?
_ If a person is found by a judge to have been unlawfully or otherwise
arbitrarily
deprived of his or her liberty, is there a right in your country to
compensation or
reparation for unlawful or arbitrary imprisonment?
_ On what grounds can persons be subjected to detention by the
administrative
authorities in your country, and what legal remedies do they have at their
disposal to
challenge the legality of the initial and subsequent deprivation of liberty?
_ At what point following their arrest/detention do persons deprived of their
liberty
have the right of access to a lawyer in your country?
_ Does the law in your country authorize resort to incommunicado
detention, and,
if so, for how long?
_ Before joining this course, what did you know about the international
legal standards
applicable to arrest and detention?
_ The Universal Declaration of Human Rights, 1948
*****
_ The Body of Principles for the Protection of All Persons under any
Form of Detention or Imprisonment, 1988;
_ The Declaration on the Protection of All Persons from Enforced
Disappearance, 1992;
_ The Principles on the Effective Prevention and Investigation of
Extra-legal, Arbitrary and Summary Executions, 1989
Chapter 5 • Human Rights and Arrest, Pre-Trial and Administrative Detention
1. Introduction
The present chapter will provide an analysis of the basic legal rules governing
arrest, detention on remand and administrative detention in international human
rights
law. In so doing, it will, inter alia, deal in some depth with the reasons justifying
arrest
and continued detention and the right of a person deprived of his or her liberty
to
challenge the legality of this deprivation of liberty. Emphasis will be laid on the
jurisprudence of the Human Rights Committee, the Inter-American and European
Courts of Human Rights, and the African Commission on Human and Peoples’
Rights,
which provide interpretations which are indispensable for a full understanding of
the
meaning of the international legal rules governing arrest and detention.
As to the treatment of detainees and the specific interests and rights of
children and women, these issues, although in many ways very closely linked to
the
subject matter of the present chapter, will be dealt with in separate chapters
focusing
specifically on the rights and interests of these groups (see Chapters 8, 10 and
11 of this
Manual).
2. Arrests and Detention without
Reasonable Cause: a Persistent
Problem
All human beings have the right to enjoy respect for their liberty and security.
It is axiomatic that, without an efficient guarantee of the liberty and security of
the
human person, the protection of other individual rights becomes increasingly
vulnerable and often illusory. Yet, as is evidenced by the work of the
international
monitoring organs, arrests and detentions without reasonable cause, and without
there
being any effective legal remedies available to the victims concerned, are
commonplace.
In the course of such arbitrary and unlawful deprivations of liberty, the detainees
are
frequently also deprived of access both to lawyers and to their own families, and
also
subjected to torture and other forms of ill-treatment.1.
It is essential, therefore, that the legal rules that exist in international
law to remedy and prevent these kinds of human rights violations be
adhered to
by national judges and prosecutors, and that lawyers are aware of their
contents,
to enable them to act effectively on behalf of their clients.
Although arbitrary or unlawful arrests and detentions occur, and can occur, at
any time, the experience of, inter alia, the Working Group on Arbitrary Detention
has
shown that the main causes of arbitrary detentions are related to states of
emergency.2
However, the question of emergency powers relating to deprivation of liberty will
be dealt
with in Chapter 16 of this Manual, and will thus not be considered in the present
context.
Lawyers 161
1See e.g. UN doc. E/CN.4/1999/63, Report of the Working Group on Arbitrary Detention.
2UN doc. E/CN.4/1996/ 40, Report of the Working Group on Arbitrary Detention, para. 106.
3. The Right to Liberty and

Security of the Person:
Field of Applicability of the
Legal Protection
3.1 Universal legal responsibility:
All States are bound by the law
Article 9(1) of the International Covenant on Civil and Political Rights, article
6 of the African Charter of Human and Peoples’ Rights, article 7(1) of the
American
Convention on Human Rights and article 5(1) of the European Convention on
Human
Rights guarantee a person’s right to “liberty” and “security”. Moreover, as stated
by the
International Court of Justice in its dictum in the Hostages in Tehran case,
“wrongfully to
deprive human beings of their freedom and to subject them to physical
constraint in
conditions of hardship is in itself incompatible with the principles of the Charter
of the
United Nations, as well as with the fundamental principles enunciated in the
Universal
Declaration of Human Rights”, article 3 of which guarantees “the right to life,
liberty
and security of person”.3 It follows that, notwithstanding that a State may
not
have ratified or otherwise adhered to any of the preceding human
rights treaties,
it is nonetheless bound by other legal sources to ensure a person’s
right to respect
for his or her liberty and security.
3.2 The notion of security of person:
State responsibility to act
The present chapter will focus on deprivations of liberty, but it is important
to point out that, in spite of being linked to the concept of “liberty” in the
above-mentioned legal texts, the notion of security of person, as such, has a
wider
field of application. The Human Rights Committee has thus held that article
9(1) of
the Covenant “protects the right to security of person also outside the context of
formal deprivation of liberty”, and that an interpretation of article 9 “which would
allow a State party to ignore threats to the personal security of non-detained
persons
subject to its jurisdiction would render totally ineffective the guarantees of the
Covenant”.4 In the view of the Committee, “it cannot be the case that, as a
matter of
law, States can ignore known threats to the life of persons under their
jurisdiction, just
because he or she is not arrested or otherwise detained”; on the contrary,
“States parties
are under an obligation to take reasonable and appropriate measures to protect
them”.5
3Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran),
ICJ Reports 1980, p. 42, para. 91.
4Communication No. 711/1996, Dias v. Angola (Views adopted on 20 March 2000), in UN doc. GAOR,
A/55/50 (vol. II), p. 114,
para. 8.3.
5Communication No. 195/1985, W. Delgado Páez v. Colombia (Views adopted on 12 July 1990), in UN doc.
GAOR, A/45/40
(vol. II), p. 47, para. 5.5.
Three relevant cases
In the case of Delgado Páez, where the author had received death threats, been
subjected to one personal assault and had a colleague murdered, the Human Rights
Committee concluded that article 9(1) had been violated since Colombia either had
not taken, or had “been unable to take, appropriate measures to ensure Mr.Delgado’s
right to security of his person”.6 In the case of Dias, the Committee concluded that
article 9(1) had been violated since it was the Angolan authorities themselves that
were alleged to be the sources of the threats and the State party had neither denied the
allegations, nor cooperated with the Committee.7 Further, in a case where the author
was shot from behind before being arrested, the Committee concluded that his right
to security of the person as guaranteed by article 9(1) was violated.8
All human beings have the right to liberty and security.
Irrespective of their treaty obligations, all States are bound by
international law to respect and ensure everybody’s right to liberty and
security of the person (universal legal responsibility).
The notion of “security” also covers threats to the personal security of
non-detained persons. States cannot be passive in the face of such
threats,
but are under a legal obligation to take reasonable and appropriate
measures to protect liberty and security of person.
4. Lawful Arrests and Detentions
4.1 The legal texts
Article 9(1) of the International Covenant on Civil and Political Rights reads
as follows:
“1. Everyone has the right to liberty and security of person. No one shall
be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such grounds and in accordance with such procedure
as are established by law.”
Lawyers 163
6Ibid., p. 48, para. 5.6.
7Communication No. 711/1996, Dias v. Angola (Views adopted on 20 March 2000), in UN doc. GAOR,
A/55/50 (vol. II), p. 114,
para. 8.3.
8Communication No. 613/1995, Leehong v. Jamaica (Views adopted on 13 July 1999), in UN doc. A/54/40
(vol. II), p. 60,
para. 9.3.
Article 6 of the African Charter on Human and Peoples’ Rights provides that:
“Every individual shall have the right to liberty and to the security of his
person. No one may be deprived of his freedom except for reasons and
conditions previously laid down by law. In particular, no one may be
arbitrarily arrested or detained.”
Article 7 of the American Convention on Human Rights provides, inter alia,
that:
“1. Every person has the right to personal liberty and security.
2. No one shall be deprived of his physical liberty except for the
reasons and under the conditions established beforehand by the
constitution of the State Party concerned or by a law established pursuant
thereto.
3. No one shall be subject to arbitrary arrest or imprisonment.”
The European Convention on Human Rights is the only treaty that
specifically enumerates the grounds which can lawfully justify a deprivation of
liberty in
the Contracting States. This list is exhaustive and “must be interpreted strictly”.9
The
first paragraph of its article 5 reads:
“1. Everyone has the right to liberty and security of person. No one shall
be deprived of his liberty save in the following cases and in accordance
with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent
court;
(b) the lawful arrest or detention of a person for non-compliance with
the lawful order of a court or in order to secure the fulfilment of any
obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of
bringing him before the competent legal authority on reasonable suspicion
of having committed an offence or when it is reasonably considered
necessary to prevent his committing an offence or fleeing after having
done so;
(d) the detention of a minor by lawful order for the purpose of
educational supervision or his lawful detention for the purpose of bringing
him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading
of infectious diseases, of persons of unsound mind, alcoholics or drug
addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an
unauthorized entry into the country or of a person against whom action is
being taken with a view to deportation or extradition.”
9Eur. Court HR, Bouamar Case, judgment of 29 February 1988, Series A, No. 129, p. 19, para. 43.
Other legal instruments that will be referred to in this chapter are:
_ The Body of Principles for the Protection of All Persons under any Form of
Detention or Imprisonment, adopted by the General Assembly in 1988;
_ The Declaration on the Protection of All Persons from Enforced Disappearance,
adopted by the General Assembly in 1992;
_ The Principles on the Effective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions, recommended by Economic and Social
Council resolution 1989/65.
4.2 The notions of lawfulness and arbitrariness:
their meaning
The four major human rights treaties referred to above all stipulate, albeit in
somewhat differing terms, that a deprivation of liberty must in all cases be
carried out in
accordance with the law (the principle of legality), and, as regards article 5 of
the
European Convention, for the exclusive purposes enumerated therein.
Furthermore,
deprivations of liberty must not be arbitrary, a wider notion which, as will be
seen
below, makes it possible for the international monitoring organs to consider
factors
that make the domestic laws or their application unreasonable in the
circumstances.
*****
As to the principle of legality, the Human Rights Committee has held that
“it is violated if an individual is arrested or detained on grounds which are not
clearly
established in domestic legislation”; in other words, the grounds for arrest and
detention must be “established by law”.10 In a case where a person was arrested
without
a warrant, which was issued more than three days later, contrary to the
domestic law
that lays down that a warrant must be issued within 72 hours after arrest, the
Committee
concluded that article 9(1) had been violated because the author had been
“deprived of
his liberty in violation of a procedure as established by law”.11
With regard to the meaning of the words “arbitrary arrest” in article 9(1), the
Committee has explained that
“‘arbitrariness’ is not to be equated with ‘against the law’, but must be
interpreted more broadly to include elements of inappropriateness,
injustice, lack of predictability and due process of law. ... [T]his means
that remand in custody pursuant to lawful arrest must not only be lawful
but reasonable in the circumstances. Remand in custody must further be
necessary in all the circumstances, for example, to prevent flight,
interference with evidence or the recurrence of crime”.12
Lawyers 165
10 Communicaton No. 702/1996, C. McLawrence v. Jamaica (Views adopted on 18 July 1997), in UN doc.
GAOR, A/52/40
(vol. II), pp. 230-231, para. 5.5.
11Communication No. 770/1997, Gridin v. Russian Federation (Views adopted on 20 July 2000), in UN doc.
GAOR, A/55/40
(vol. II), p. 175, para. 8.1.
12Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN doc.
GAOR, A/49/40
(vol. II), p. 181, para. 9.8; footnote omitted from the quotation; emphasis added.
In other words, remand in custody pursuant to lawful arrest must not only be
“lawful” but also “reasonable” and “necessary” in all the circumstances for
the
aforementioned purposes. It is for the State party concerned to show that these
factors
are present in the particular case.13
The Mukong case
In the case of Mukong, the applicant alleged that he had been arbitrarily arrested and
detained for several months, an allegation rejected by the State party on the basis that
the arrest and detention had been carried out in accordance with the domestic law of
Cameroon. The Committee concluded that article 9(1) had been violated, since the
author’s detention “was neither reasonable nor necessary in the circumstances of the
case”.14 For instance, the State party had not shown that the remand in custody was
“necessary ... to prevent flight, interference with evidence or the recurrence of crime”
but had “merely contended that the author’s arrest and detention were clearly
justified by reference to” article 19(3) of the Covenant, which allows for restrictions
on the right to freedom of expression.15 However, the Committee considered that
“national unity under difficult political circumstances cannot be achieved by
attempting to muzzle advocacy of multi-party democracy, democratic tenets and
human rights”, and that the author’s right to freedom of expression had therefore
been violated.16 Consequently, the Committee also concluded that the author’s arrest
and detention were contrary to article 9(1) of the Covenant.17
In a case where a victim had been held in detention for about 16 months with
a view to forcing him to disclose the whereabouts of his brother, the Committee
considered that he had been subjected to “arbitrary arrest and detention”
contrary to
article 9, there being no other criminal charge laid against him.18 Clearly, when a
person
is arrested without warrant or summons and then simply kept in detention
without any
court order, this also amounts to a violation of the right to freedom from
arbitrary
arrest and detention set forth in article 9(1).19 In some cases dealt with by the
Committee, persons have been kept in detention contrary to article 9(1) of the
Covenant without any court order, simply on grounds of their political opinions.20
13Communication No. 305/1988, H. van Alphen v. the Netherlands (Views adopted on 23 July 1990), in UN
doc. GAOR, A/45/40
GAOR, A/49/40
(vol. II), p. 181 para. 9.8.
15Ibid., loc. cit.
16Ibid., p. 181, para. 9.7.
17Ibid., para. 9.8.
18Communication No. 16/1977, D. Monguya Mbenge et al. v. Zaire (Views adopted on 25 March 1983), in UN
doc. GAOR,
A/38/40, p. 140, paras. 20-21.
19Communication No. 90/1981, L. Magana ex-Philibert v. Zaire (Views adopted on 21 July 1983), in UN doc.
GAOR, A/38/40,
p. 200, paras. 7.2 and 8.
20See, for example, Communication No. 132/1982, M. Jaona v. Madagascar (Views adopted on 1 April 1985),
in UN doc. GAOR,
A/40/40, p. 186, para. 14.
It is further evident that, where a person is kept in detention in spite of a
judicial order of release, this is also contrary to article 9(1) of the Covenant.21
*****
The prohibition of arbitrariness also of course means that deprivations
of liberty must not be motivated by discrimination. As further explained in
Chapter
13, the States parties to the human rights treaties examined in this Manual
undertake to
ensure the enjoyment of rights and fundamental freedoms without distinction on
such
grounds as race, colour, sex, language, religion, and political or other opinion.
The
African Commission on Human and Peoples’ Rights consequently concluded that
arrests and detentions carried out by the Rwandan Government “on grounds of
ethnic
origin alone, ... constitute arbitrary deprivation of the liberty of an individual”;
such acts
are thus “clear evidence of a violation of” article 6 of the African Charter on
Human
and Peoples’ Rights.22
In another case the African Commission held that the “indefinite detention
of persons can be interpreted as arbitrary as the detainee does not know the
extent of
his punishment”; article 6 of the African Charter had been violated in this case
because
the victims concerned were detained indefinitely after having protested against
torture.23
Furthermore, it constitutes an arbitrary deprivation of liberty within the
meaning of article 6 of the African Charter to detain people without charges
and
without the possibility of bail; in this particular case against Nigeria the
victims had
been held in these conditions for over three years following elections.24
*****
The Inter-American Court on Human Rights has held, with regard to article
7(2) and (3) of the American Convention on Human Rights, that
“persuant to the first of these provisions, no person may be deprived of his
or her personal freedom except for reasons, cases or circumstances
expressly defined by law (material aspect) and, furthermore, subject to
strict adherence to the procedures objectively set forth in that law (formal
aspect). The second provision addresses the issue that no one may be
subjected to arrest or imprisonment for reasons and by methods which,
although classified as legal, could be deemed to be incompatible with the
respect for the fundamental rights of the individual because, among other
Lawyers 167
21See, for example, Communication No. R.1/5, M. H. Valentini de Bazzano et al. v. Uruguay (Views adopted
on 15 August 1977),
in UN doc. GAOR, A/34/40, para. 10 at p. 129.
22ACHPR, Organisation Contre la Torture and Others v. Rwanda, Communications Nos. 27/89, 46/91, 49/91,
and 99/93, decision adopted
during the 20th Ordinary session, October 1996, para. 28; for the text of the decision, see
http://www1.umn.edu/humanrts/africa/comcases/27-89_46-91_49-91_99-93.html.
23ACHPR, World Organisation against Torture and Others v. Zaire, Communications Nos. 25/89, 47/90,
56/91 and 100/93, decision adopted
during the 19th session, March 1996, para. 67; for the text see http://www.up.ac.za/chr/.
24ACHPR, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Communication No.
102/93, decision adopted on 31 October
1998, para. 55 of the text published at the following web site:
things, they are unreasonable, unforeseeable or lacking in
proportionality.”25
In the case of Castillo-Páez, Peru had violated various provisions of article 7 of
the American Convention, including paragraphs (2) and (3), since the victim had
been
detained by members of the Natonal Police without a written order issued by a
judicial
authority contrary to both the American Convention and the Peruvian
Constitution.26
Articles 7(1), (2) and (3) of the American Convention were further violated in
the Cesti Hurtado case, since, in defiance of an order of the Public Law Chamber
of the
Superior Court of Justice, the Peruvian military proceeded to detain, prosecute
and
convict Mr. Hurtado.27
Lastly, article 7 was violated in the so-called “Street Children” case concerning
the abduction and murder of several youths perpetrated by State agents
contrary to the
conditions established by domestic law. The Inter-American Court emphasized its
case-law with regard to arrests and the material and formal aspects of the
guarantees
that need to be fulfilled, and concluded that neither aspect had been observed. It
also
referred to the jurisprudence of the European Court of Human Rights, according
to
which “the promptness of judicial control of arrests is of special importance for
the
prevention of arbitrary arrests”.28
*****
With regard to article 5(1) of the European Convention on Human Rights, the
European Court has consistently held that the “object and purpose” thereof is
“precisely to ensure that no one should be deprived of his liberty in an arbitrary
fashion”.29 In other words,
“the expressions ‘lawful’ and ‘in accordance with a procedure prescribed
by law’ in Article 5 § 1 stipulate not only full compliance with the
procedural and substantive rules of national law, but also that any
deprivation of liberty be consistent with the purpose of Article 5 and
not arbitrary (...). In addition, given the importance of personal liberty, it
is essential that the applicable national law meet the standard of
‘lawfulness’ set by the Convention, which requires that all law, whether
written or unwritten, be sufficiently precise to allow the citizen – if need
be, with appropriate advice – to foresee, to a degree that is reasonable
in all circumstances, the consequences which a given action may
entail.”30
25I-A Court HR, Gangaram Panday Case v. Suriname, judgment of January 21, 1994, in OAS doc.
OAS/Ser.L/V/III.31, doc. 9, Annual
Report of the Inter-American Court of Human Rights 1994, p. 32, para. 47; emphasis added.
26I-A Court HR, Castillo Páez Case v. Peru, judgment of November 3, 1997, in OAS doc. OAS/Ser.L/V/III.39,
doc. 5, Annual Report
Inter-American Court of Human Rights 1997, p. 263, para. 56.
27I-A Court HR, Cesti Hurtado Case v. Peru, judgment of September 29, 1999, in OAS doc. OEA/Ser.L/V/III.47,
doc. 6, Annual Report
Inter-American Court of Human Rights 1999, p. 445, paras. 141-143.
28I-A Court HR, Villagrán Morales et al. Case (The “Street Children” Case), judgment of November 19, 1999,
in OAS doc.
OEA/Ser.L/V/III.47, doc. 6, Annual Report Inter-American Court on Human Rights 1999, pp. 704-706, paras.
128-136.
29Eur. Court HR, Case of X v. the United Kingdom, judgment of 5 November 1981, Series A, No. 46, p. 19,
para. 43.
30Eur. Court HR, Case of Steel and Others v. the United Kingdom, judgment of 23 September 1998, Reports
1998-VII, p. 2735, para. 54;
emphasis added.
The important question of foreseeability has inter alia been considered in
relation to the concept of a breach of the peace under United Kingdom law, with
the
European Court holding that “the relevant rules provided sufficient guidance and
were
formulated with the degree of precision required by the Convention”.31 This was
so
since it was “sufficiently established that a breach of the peace is committed
only when
an individual causes harm, or appears likely to cause harm, to persons or
property or
acts in a manner the natural consequences of which would be to provoke others
to
violence”; it was “also clear that a person may be arrested for causing a breach
of the
peace or where it is reasonably apprehended that he or she is likely to cause a
breach of
the peace”.32 However, it found that where applicants had been arrested for
about
seven hours before being released on bail and where there were no rulings by
national
courts on the question whether the arrests and detentions accorded with English
law,
article 5(1) of the Convention had been violated.33
To be lawful under international human rights law, arrests and
detentions must:
_ be carried out in accordance with both formal and substantive rules of
domestic and international law, including the principle of
non-discrimination;
_ be free from arbitrariness, in that the laws and their application must
be appropriate, just, foreseeable/predictable and comply with due
process of law.
4.2.1 Unacknowledged detentions, abductions and involuntary
disappearances
Where people have been abducted, illegally detained under domestic law, and
subsequently murdered or made to disappear, the Human Rights Committee has
concluded that the detention violated article 9 of the Covenant.34 Abduction and
detention by agents of one State party of persons in another country provides
another
example of “an arbitrary arrest and detention”.35
In its General Comment No. 20 on article 7, the Committee stated,
furthermore, that
Lawyers 169
31Ibid., para. 55 at p. 2736.
32Ibid., loc. cit.
33Ibid., p. 2737, paras. 62-65.
34Communication No. 612/1995, Arhuacos v. Colombia (Views adopted on 29 July 1997), in UN doc. GAOR,
A/52/40 (vol. II),
pp. 181-182, para. 8.6 (murder); Communication No. 540/1993, C. Laureano v. Peru (Views adopted on 25
March 1996), in UN doc.
GAOR, A/51/40 (vol. II), p. 114, para. 8.6 (disappearance).
35Communication No. R.12/52, D. Saldías de López on behalf of S. R. López Burgos (Views adopted on 29
July 1981), in UN doc.
GAOR, A/36/40, p. 183, para. 13.
“To guarantee the effective protection of detained persons, provisions
should be made for detainees to be held in places officially recognized as
places of detention and for their names and places of detention, as well as
for the names of persons responsible for their detention, to be kept in
registers readily available and accessible to those concerned, including
relatives and friends. To the same effect, the time and place of all
interrogations should be recorded, together with the names of all those
present and this information should also be available for purposes of
judicial or administrative proceedings.”36
Principle 12 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment, article 10 of the Declaration on the
Protection of All Persons from Enforced Disappearance, and Principle 6 of the
Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary
and
Summary Executions also contain similar requirements with regard, inter alia, to
the
holding of detained people in officially recognized places of detention and the
registration of all relevant information concerning the person deprived of his
liberty.
*****
While accepting that “the State has the right and duty to guarantee its
security”, the Inter-American Court of Human Rights has emphasized that the
State is
also “subject to law and morality” and that “disrespect for human dignity cannot
serve
as the basis for any State action”; it follows that
“forced disappearance of human beings is a multiple and continuous
violation of many rights under the Convention that the States parties are
obligated to respect and guarantee. The kidnapping of a person is an
arbitrary deprivation of liberty, an infringement of a detainee’s right to be
taken without delay before a judge and to invoke the appropriate
procedures to review the legality of the arrest, all in violation of article 7 of
the Convention.”37
*****
The European Court of Human Rights has frequently emphasized the
fundamental importance of the guarantees contained in article 5 of the European
Convention “for securing the rights of individuals in a democracy to be free from
arbitrary detention at the hands of the authorities”, further stressing that
“the unacknowledged detention of an individual is a complete
negation of these guarantees and discloses a most grave violation of
Article 5. Given the responsibility of the authorities to account for
individuals under their control, article 5 requires them to take effective
measures to safeguard against the risk of disappearance and to conduct a
prompt and effective investigation into an arguable claim that a person has
been taken into custody and has not been seen since.”38
37I-A Court HR, Godinez Cruz Case, judgment of January 20, 1989, Series C, No. 5, pp. 144-145, paras. 162-
163; and also the Velásquez
Rodríguez Case, judgment of July 29, 1988, Series C, No. 4, pp. 146-147, paras. 154-155.
38Eur. Court HR, Case of Çakici v. Turkey, judgment of 8 July 1999, Reports 1999-IV, p. 615, para. 104;
emphasis added.
The Court has further specified that
“the recording of accurate holding data concerning the date, time and
location of detainees, as well as the grounds for the detention and the name
of the persons effecting it, is necessary for the detention of an individual to
be compatible with the requirements of lawfulness for the purposes of
Article 5 § 1”.39
The Çakici case
In the case of Çakici, the lack of records on the applicant – who was held in
unacknowledged detention – disclosed “a serious failing”, which was aggravated by
the “findings as to the general unreliability and inaccuracy”of the custody records in
question. The Court found “unacceptable the failure to keep records which enable
the location of a detainee to be established at a particular time”.40 Considering that, in
spite of there being three eye-witnesses to the detention of the applicant, “no steps
were taken to seek any evidence, beyond enquiring as to entries in custody records,
until after the application was communicated to the Government by the [European]
Commission [of Human Rights]”, the Court concluded that there “was neither a
prompt nor a meaningful inquiry into the circumstances of Ahmet Çakici’s
disappearance”.41 There had consequently been “a particularly grave violation of the
right to liberty and security of person” as guaranteed by article 5 of the Convention.42
International law outlaws unacknowledged arrests and detentions. States
are accountable for all persons in their custody. In particular, the date,
time and location of all detentions must be available to families, lawyers
and all competent judicial and other authorities at all times, in official
registers the accuracy of which should not be open to doubt.
Involuntary or enforced disappearances and unacknowledged detentions
constitute particularly serious violations of fundamental human rights,
including the right to liberty and security of the person.
Lawyers 171
39Ibid., para. 105 at p. 616.
40Ibid., loc. cit.
41Ibid., p. 616, para. 106.
42Ibid., para. 107.
4.3 Detention after conviction

Although the European Convention, in its article 5(1)(a), is the only treaty
explicitly providing for the “lawful detention of a person after conviction by a
competent court”, this legitimate ground for deprivation of liberty is, of course,
implicit
in the other treaty provisions. It goes without saying, however, that once the
officially
determined prison sentence has been served, the convicted person must be
released.
Where convicted persons have not been released although having fully served
their
sentence of imprisonment, the Human Rights Committee has naturally found
that their
detention violated article 9(1) of the International Covenant.43
In article 5(1)(a) of the European Convention, “the word ‘conviction’ ... has to
be understood as signifying both a ‘finding of guilt’, after ‘it has been established
in
accordance with the law that there has been an offence’ (...), and the imposition
of a
penalty or other measure involving deprivation of liberty”; further, the “word
‘after’
does not simply mean that the ‘detention’ must follow the ‘conviction’ in point of
time:
in addition, the ‘detention’ must result from, ‘follow and depend upon’ or occur
‘by
virtue of’ the ‘conviction’”.44
What, then, is the situation where a judgement has two components, whereby,
in addition to
comprising a penalty involving the deprivation of liberty, it also places the
offender at the Government’s
disposal, a component the execution of which may take different forms ranging
from remaining at liberty
under supervision to detention?
In the case of Van Droogenbroeck the European Court accepted that there had
been no violation of article 5(1) of the European Convention by virtue of the
decisions
of the Minister of Justice to revoke the applicant’s conditional release; the Court
considered that the manner in which the Belgian authorities “exercised their
discretion
respected the requirements of the Convention, which allows a measure of
indeterminacy in sentencing and does not oblige the Contracting States to
entrust to the
courts the general supervision of the execution of sentences”.45 However, “a
detention
that was lawful at the outset would be transformed into a deprivation of liberty
that was
arbitrary”, if the decisions concerned “were based on grounds that had no
connection
with the objectives of the legislature and the court or on an assessment that was
unreasonable in terms of those objectives”.46
43Communication No. R.2/8, A. M. García Lanza de Netto on behalf of B. Weismann Lanza and A. Lanza
Perdomo (Views adopted on
3 April 1980), in UN doc. GAOR, A/35/40, p. 118, para. 16.
44Eur. Court HR, Van Droogenbroeck Case, judgment of 24 June 1982, Series A, No. 50, p. 19, para. 35.
45Ibid., p. 20, para. 40.
46Ibid., loc. cit.
4.4 Arrest and detention for non-compliance with the

lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law
These are both expressly legitimate grounds for depriving a person of his or
her liberty under article 5(1)(b) of the European Convention. With regard to the
words
“to secure the fulfilment of any obligation prescribed by law”, the European
Court has
held that they “denote an obligation, of a specific and concrete nature, ...
already
incumbent on the person concerned”; they do not therefore cover, for instance,
arrest
and detention carried out prior to the rendering of a court order for compulsory
residence in a specified locality.47
4.5 Detention on reasonable suspicion of having
committed an offence
The most common legitimate ground for deprivation of liberty is no doubt
that a person is reasonably suspected of having committed an offence (see
expressis verbis
article 5(1)(c) of the European Convention). However, as will be seen below, such
suspicion does not justify an indefinite detention. What might be considered
acceptable
differs from case to case, but, as stipulated in article 9(3) of the Covenant and
articles
7(5) and 5(3) of the American and European Conventions respectively, the
suspect has
a right to be tried “within a reasonable time or to release” pending trial.
Liberty is the rule, to which detention must be the exception. As stated in
Rule 6.1 of the United Nations Standard Minimum Rules for Non-Custodial
Measures,
the so-called “Tokyo Rules”, “pre-trial detention shall be used as a means of last
resort
in criminal proceedings, with due regard for the investigation of the alleged
offence and
for the protection of society and the victim”.
*****
The European Court has specified that article 5(1)(c) of the European
Convention “permits deprivation of liberty only in connection with criminal
proceedings”, a view that is “apparent from its wording, which must be read in
conjunction both with sub-paragraph (a) and with paragraph 3, which forms a
whole
with it (...)”.48 It follows that compulsory residence orders, which, unlike a
conviction
and prison sentence, may be based on suspicion rather than proof, “cannot be
equated
with pre-trial detention as governed by” article 5(1)(c).49
Lawyers 173
47Eur. Court HR, Ciulla Case v. Italy, judgment of 22 February 1989, Series A, No. 148, p. 16, para. 36.
48Ibid., p. 16, para. 38.
49Ibid., para. 39 at p. 17.
4.5.1 The meaning of “reasonableness”
The European Court has held that the “‘reasonableness’ of the suspicion on
which an arrest must be based forms an essential part of the safeguard against
arbitrary
arrest and detention, which is laid down in” article 5(1)(c) of the European
Convention,
and that the fact of “having a ‘reasonable suspicion’ presupposes the existence
of facts
or information which would satisfy an objective observer that the person
concerned
may have committed the offence”; however, what “may be regarded as
‘reasonable’ will
... depend upon all the circumstances”.50
In connection with arrests and detention under criminal legislation enacted to
deal with acts of terrorism connected with the affairs of Northern Ireland, the
European Court has explained that
“in view of the difficulties inherent in the investigation and prosecution of
terrorist-type offences, ... the ‘reasonableness’ of the suspicion justifying
such arrests cannot always be judged according to the same standards as
are applied in dealing with conventional crime. Nevertheless, the
exigencies of dealing with terrorist crime cannot justify stretching the
notion of ‘reasonableness’ to the point where the essence of the safeguard
secured by Article 5 § 1 (c) is impaired... ”.51
Although “the Contracting States cannot be asked to establish the
reasonableness of the suspicion grounding the arrest of a suspected terrorist by
disclosing the confidential sources of supporting information or even facts which
would be susceptible of indicating such sources of their identity”, the Court must
nevertheless “be enabled to ascertain whether the essence of the safeguard
afforded by
Article 5 § 1 (c) has been secured”; this means that “the respondent Government
have
to furnish at least some facts or information capable of satisfying the Court that
the
arrested person was reasonably suspected of having committed the alleged
offence”.52
The case of Fox, Campbell and Hartley
In the case of Fox, Campbell and Hartley, the European Court accepted that the
applicants had been arrested and detained “on a bona fide suspicion” that they were
terrorists. However, neither the fact that two of them had “previous convictions for
acts of terrorism connected with the IRA”, nor the fact that they were all questioned
during their detention “about specific terrorist acts” did more than “confirm that the
arresting officers had a genuine suspicion that they had been involved in those acts”.
It could not “satisfy an objective observer that the applicants may have committed
these acts”; these elements alone were “insufficient to support the conclusion that
there was ‘reasonable suspicion’”.53 Consequently, there was a breach of article 5(1).54
50Eur. Court HR, Case of Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, Series A, No.
182, p. 16, para. 32; emphasis
added.
51Ibid., pp. 16-17, para. 32.
52Ibid., pp. 17-18, para. 34.
54Ibid., para. 36.
4.6 Detention in order to prevent flight

In the Mukong case, the Human Rights Committee made it clear that a
detention on remand is legitimate under article 9(1) if lawful and necessary in
the
particular case, in order to prevent flight, for instance.55 Article 5(1)(c) of the
European
Convention, too, foresees the possibility lawfully to detain a person “to prevent
his ...
fleeing after having” committed an offence. The risk of absconding as a possible
justification for continued detention will be further dealt with below.
As a general principle, liberty is the rule and detention the exception.
Deprivation of a person’s liberty must at all times be objectively
justified in that the reasonableness of the grounds of detention must be
assessed from the point of view of an objective observer and based on
facts
and not merely on subjective suspicion.
The most common grounds for a lawful judicial deprivation of liberty are:
_ after conviction by a competent, independent and impartial court of law;
_ on reasonable suspicion of having committed an offence or in order to
prevent the person from doing so;
_ in order to prevent a person from fleeing after having committed a crime.
4.7 Administrative detention

For the purposes of this Manual, administrative detention is detention
ordered by the Executive even though there exists, as should be the case under
international human rights law, an a posteriori remedy to challenge the
lawfulness of
the deprivation of liberty before the courts. The power of administrative and
ministerial
authorities to order detentions is highly controversial, and some experts believe
it
should be abolished.56 It is important to be aware, however, that this form of
detention
is not outlawed by international law, even though it is surrounded by some
important
safeguards.
According to General Comment No. 8 of the Human Rights Committee,
article 9(1) “is applicable to all deprivations of liberty, whether in criminal cases
or in
other cases such as, for example, mental illness, vagrancy, drug addiction,
educational
purposes, immigration control, etc.”.57 It follows that article 9(1) covers all
cases of
administrative detention. However, whilst some other provisions of article 9
“are
only applicable to persons against whom criminal charges are brought”, others,
such as,
Lawyers 175
55See Communication No. 458/1991, A. W. Mukong v. Cameroon (Views adopted on 21 July 1994), in UN
doc. GAOR, A/49/40
(vol. II), p. 181, para. 9.8.
56See e.g. the view expressed by Mr. Louis Joinet in para. 18 of his Report on the practice of administrative
detention
(UN doc. E/CN.4/Sub.2/1990/29).
in particular, article 9(4), which provides important judicial guarantees, are also
applicable to cases of administrative deprivation of liberty.58
*****
Article 5(1)(d)-(f) of the European Convention authorizes categories of
detention which are largely identical to those enumerated by the Human Rights
Committee. However, it should be emphasized that they may not
necessarily be
imposed by administrative authorities, but may instead fall within the
competence of the ordinary courts of law. Article 5(4) of the European
Convention
also provides important judicial guarantees with regard to all deprivations of
liberty.
The same holds true with regard to article 7(6) of the American Convention on
Human
Rights. These guarantees will be dealt with in further depth below.
4.7.1 Deprivation of liberty for the purpose of educational
supervision
In the case of Bouamar submitted under the European Convention on Human
Rights, the applicant complained of having been subjected to nine periods of
detention
for up to fifteen days in a remand prison for the purpose of his “educational
supervision”. The orders in question were based on the Belgian Children’s and
Young
Persons’ Welfare Act of 1965.
The Court noted that “the confinement of a juvenile in a remand prison does
not necessarily contravene sub-paragraph (d), even if it is not in itself such as to
provide
for the person’s ‘educational supervision’”. However, in such circumstances “the
imprisonment must be speedily followed by actual application” of a regime of
supervised education “in a setting (open or closed) designed and with sufficient
resources for the purpose”.59 It did not share the Government’s view that the
placements complained of were part of an educative programme, emphasizing
that
Belgium “was under an obligation to put in place appropriate institutional
facilities
which met the demands of security and the educational objectives of the 1965
Act, in
order to be able to satisfy the requirements of” article 5(1)(d).60 “The detention
of a
young man in a remand prison in conditions of virtual isolation and without the
assistance of staff with educational training” could not “be regarded as
furthering any
educational aim”; consequently, the placement orders – whereby the applicant
had
been deprived of his liberty for 119 days during a period of 291 days – were
incompatible with article 5(1)(d) of the European Convention.61
58Ibid., loc. cit.
60Ibid., pp. 21-22, para. 52.
61Ibid., paras. 51-53.
4.7.2 Deprivation of liberty for reasons of mental health
The Human Rights Committee has concluded that a nine-year detention of a
person under the New Zealand Mental Health Act “was neither unlawful nor
arbitrary”
and did not, consequently, violate article 9(1) of the Covenant.62 The Committee
observed that “the author’s assessment under the Mental Health Act followed
threatening and aggressive behaviour on the author’s part, and ... the committal
order
was issued according to the law, based on an opinion of three psychiatrists”;
furthermore, “a panel of psychiatrists continued to review the author’s situation
periodically”.63 Since the author’s continued detention was also “regularly
reviewed by
the Courts”, neither was there any violation of article 9(4).64
*****
As to the meaning of the words “persons of unsound mind” in article 5(1)(e)
of the European Convention, the European Court has held that “this term is not
one
that can be given a definitive interpretation”, but one “whose meaning is
continually
evolving as research in psychiatry progresses, an increasing flexibility in
treatment is
developing and society’s attitude to mental illness changes, in particular so that
a greater
understanding of the problems of mental patients is becoming more
widespread”.65 It
added that article 5(1)(e) “obviously cannot be taken as permitting the detention
of a
person simply because his views or behaviour deviate from the norms prevailing
in a
particular society. To hold otherwise would not be reconcilable with the text of
Article 5 § 1 which sets out an exhaustive list ... of exceptions calling for a
narrow
interpretation”.66 Lastly, such an interpretation would not be “in conformity with
the
object and purpose of Article 5 § 1, namely, to ensure that no one should be
dispossessed of his liberty in an arbitrary fashion”.67
Applying these criteria, the European Court has held that the following three
minimum conditions must be satisfied for there to be a lawful detention of
persons
with mental problems under article 5(1)(e), namely:
“except in emergency cases, the individual concerned must be reliably
shown to be of unsound mind, that is to say, a true mental disorder must be
established before a competent authority on the basis of objective medical
expertise; the mental disorder must be of a kind or degree warranting
compulsory confinement; and the validity of continued confinement
depends upon the persistence of such a disorder”.68
Lawyers 177
62Communication No. 754/1997, A. v. New Zealand (Views adopted on 15 July 1999), in UN doc. GAOR,
A/54/40 (vol. II),
p. 254, para. 7.2.
63Ibid., loc. cit.
64Ibid., p. 254, para. 7.3.
65Eur. Court HR, Winterwerp Case v. the Netherlands, judgment of 24 October 1979, Series A, No. 33, p. 16,
para. 37.
67Ibid.
68Eur. Court HR, Case of X. v. the United Kingdom, judgment of 5 November 1981, Series A, No. 46, p. 18,
para. 40.
The Court “has the jurisdiction to verify the fulfilment of these conditions in a
given case”, although, “since the national authorities are better placed to
evaluate the
evidence adduced before them, they are to be recognised as having a certain
discretion
in the matter and the Court’s task is limited to reviewing under the Convention
the
decisions they have taken”.69
More on detention for reasons of mental health
In “emergency cases” the Court has, however, accepted that a “wide discretion must
in the nature of things be enjoyed by the national authority empowered to order such
emergency confinements”, since “it would be impracticable to require a thorough
medical examination prior to any arrest or detention”.70 In such cases, the Court
examines, inter alia: whether the domestic legislation grants the national authorities
arbitrary power; whether it is otherwise incompatible with the expression “the lawful
detention of persons of unsound mind”; and whether the legislation concerned was
applied to the applicant in such a way that there might be a breach of article 5(1)(e) of
the Convention.71 This implies, in particular, that the Court has to assess
whether the interests of the protection of the public prevail over the
individual’s right to liberty to the extent of justifying an emergency
confinement in the absence of the usual guarantees implied in article 5(1)(e);
however, the emergency measure must only be for a short duration.72
Where the applicant had a history of psychiatric troubles and, according to his
wife, remained “deluded and threatening”, the Home Secretary, who acted on
medical
advice, ordered the applicant’s recall, a measure that was, according to the
Court,
justified “as an emergency measure and for a short duration”. Examining the
applicant’s further detention the Court concluded that it had “no reason to doubt
the
objectivity and reliability” of the medical judgement submitted to justify this
detention.73
With regard to the extension of psychiatric detention, the European Court
has stressed that “the lawfulness of the extension of the applicant’s placement
under
domestic law is not in itself decisive”, but that “it must also be established that
his
detention during the period under consideration was in conformity with the
purpose of
Article 5 § 1 of the Convention which is to prevent persons from being deprived
of
their liberty in an arbitrary fashion”.74 This means, inter alia, that there must be
no
major delay in the renewal of the detention orders. Whilst the Court has
considered
that a delay of two weeks could “in no way be regarded as unreasonable or
excessive”
and thus did not amount to an arbitrary deprivation of liberty,75 a period of over
two
71Ibid., loc. cit.
72Ibid., pp. 20-21, paras. 44-46.
73Ibid., p. 21, para. 46 in conjunction with p. 20, para. 44.
74Eur. Court HR, Case of Erkalo v. the Netherlands, judgment of 2 September 1998, Reports 1998-VI, p.
2478, para. 56.
75Eur. Court HR, Case of Winterwerp v. the Netherlands, judgment of 24 October 1979, Series A, No. 33, p.
21, para. 49.
and a half months was considered excessive and constituted a violation of article
5(1).
In this latter case, the Court concluded that “the public interest involved” could
“not be
relied upon as a justification for keeping the applicant, who ... was undergoing
psychiatric treatment, in a state of uncertainty for over two and a half months”.
The
Court emphasized that “the onus for ensuring that a request for the extension of
a
placement order is made and examined in time must be placed on the
competent
authorities and not on the person concerned”.76
Article 5(1) was considered violated when the national judge ordering a
person’s confinement in a psychiatric hospital under the Dutch Mentally Ill
Persons
Act failed to hear the person concerned “before authorizing her confinement,
although
the legal conditions under which such a hearing might be dispensed with were
not
satisfied”; the judge should at “the very least ... have stated, in his decision, the
reasons
which led him to depart from the psychiatrist’s opinion in this respect”.77
Article 5(1) was further violated when, contrary to domestic law, no registrar
was present at the court hearing following which the applicant was confined in a
psychiatric hospital; in other words, the terms “procedure prescribed by law” had
not
been complied with.78
4.7.3 Deprivation of liberty of asylum seekers and for purposes of
deportation and extradition
The Human Rights Committee has ruled with regard to article 9(1) that “there
is no basis for the ... claim that it is per se arbitrary to detain individuals
requesting
asylum”, although “every decision to keep a person in detention should be open
to
review periodically so that the grounds justifying the detention can be
assessed”.79 In
any event,
“detention should not continue beyond the period for which the State can
provide appropriate justification. For example, the fact of illegal entry may
indicate a need for investigation and there may be other factors particular
to the individual, such as the likelihood of absconding and lack of
cooperation, which may justify detention for a period. Without such
factors detention may be considered arbitrary, even if entry was
illegal”.80
In this specific case, since the State party had not advanced grounds to justify
the author’s “continued detention for a period of four years”, the Committee
concluded that the detention was arbitrary and thus contrary to article 9(1).81
*****
Lawyers 179
76Eur. Court HR, Case of Erkalo v. the Netherlands, judgment of 2 September 1998, Reports 1998-VI, p.
2479, para. 59.
77Eur. Court HR, Van der Leer Case v. the Netherlands, judgment of 21 February 1990, Series A, No. 170-A,
p. 12, para. 23.
78Eur. Court HR, Wassink Case v. the Netherlands, judgment of 27 September 1990, Series A, No. 185-A, p.
12, para. 27.
79Communication No. 560/1993, A. v. Australia (Views adopted on 3 April 1997), in UN doc. GAOR, A/52/40
(vol. II), p. 143,
paras. 9.3 and 9.4.
80Ibid., para. 9.4; emphasis added.
81Ibid., loc. cit.
Article 5(1)(f) of the European Convention authorizes “the lawful arrest or
detention of a person to prevent his affecting an unauthorized entry into the
country or
of a person against whom action is being taken with a view to deportation or
extradition”. This means, for instance, that the detention must not pursue an aim
different from that for which it was ordered.82 Further, in case of extradition, for
instance, the deprivation of liberty under this subparagraph “will be justified only
for as
long as extradition proceedings are being conducted”, and, consequently, “if
such
proceedings are not being prosecuted with due diligence, the detention will
cease to be
justified under article 5 § 1 (f)”.83 A detention of almost two years has thus been
considered “excessive” by the Court, which considered that the reasonable time
had
already been exceeded after 18 months, when the extradition order was in fact
given.84
4.7.4 Preventive detention and detention for reasons of ordre public
Cases involving preventive detention for reasons of public security or public
order often raise particular concerns in a State governed by the rule of law, in
view of
the difficulty inherent in defining such terms with sufficient clarity and the
resulting
legal uncertainty to which it gives rise. However, insofar as article 9 of the
Covenant is
concerned, the Human Rights Committee has stated in General Comment No. 8
that
“... if so-called preventive detention is used, for reasons of public security,
it must be controlled by these same provisions, i.e. it must not be arbitrary,
and must be based on grounds and procedures established by law (para. 1),
information of the reasons must be given (para. 2) and court control of the
detention must be available (para. 4) as well as compensation in the case of
a breach (para. 5). And if, in addition, criminal charges are brought in such
cases, the full protection of article 9(2) and (3), as well as article 14, must
also be granted”.85
In the case of Cámpora Schweizer, the author was held in accordance with the
“prompt security measures” under Uruguayan law. Without pronouncing itself on
the
compatibility of this legal measure per se with the Covenant, the Committee
emphasized that, although
“administrative detention may not be objectionable in circumstances where
the person concerned constitutes a clear and serious threat to society which
cannot be contained in any other manner, ... the guarantees enshrined in the
following paragraphs of article 9 fully apply in such instances”.86
In this case, however, article 9(3) and (4) of the Covenant had been violated
because of the particular modalities under which the “prompt security
measures” had
been “ordered, maintained and enforced”.87
*****
82Eur. Court HR, Case of Quinn v. France, judgment of 22 March 1995, Series A, No. 311, pp. 18-19, para.
47.
83Ibid., p. 19, para. 48.
84Ibid., pp. 19-20, para. 48.
86Communication No. 66/1980, D. A. Cámpora Schweizer v. Uruguay (Views adopted on 12 October 1982),
in UN doc. A/38/40,
p. 122, para. 18.1.
87Ibid., p. 122, para. 18.1 and p. 123, para. 19.
As to the possibility of justifying, under article 5(3) of the European
Convention, pre-trial detention on the ground that there is a risk of prejudice to
public
order, see further below under section 5.1.
The basic legal rules regulating arrest and detention are also applicable to
administrative detention, i.e. detention by the Executive for
reasons unrelated to criminal activities, such as, for instance, detention for
educational supervision, reasons of mental health, for the purpose of
deportation and extradition, and in order to protect ordre public.
International human rights law also provides important judicial
guarantees with respect to administrative detention. Domestic law must
provide for the possibility of challenging the lawfulness of such detentions
before an ordinary court of law applying due process guarantees.
4.8 The right to be promptly informed of
reasons for arrest and detention and of
any charges against oneself
Article 9(2) of the International Covenant on Civil and Political Rights provides
that “anyone who is arrested shall be informed, at the time of arrest, of the
reasons for his
arrest and shall be promptly informed of any charges against him”. Article 7(4)
of the
American Convention on Human Rights provides that “anyone who is detained
shall be
informed of the reasons for his detention and shall be promptly notified of the
charge or
charges against him”, while, according to article 5(2) of the European
Convention on
Human Rights, “everyone who is arrested shall be informed promptly, in a
language
which he understands, of the reasons for his arrest and of any charge against
him”. The
African Charter on Human and Peoples’ Rights contains no specific provision in
this
respect, but the African Commission on Human and Peoples’ Rights has held that
the
right to a fair trial includes, inter alia, the requirement that persons arrested
“shall be
informed at the time of arrest, in a language which they understand of the
reason for their
arrest and shall be informed promptly of any charges against them”.88
*****
The Human Rights Committee has explained that “one of the most important
reasons for the requirement of ‘prompt’ information on a criminal charge is to
enable
a detained individual to request a prompt decision on the lawfulness of
his or her
detention by a competent judicial authority”.89 It concluded that article 9(2)
of the
Covenant had been violated in a case where the complainant had not been
informed
upon arrest of the charges against him and was only informed seven days after
he had
Lawyers 181
88See e.g. ACHPR, Media Rights Agenda (on behalf of Niran Malaolu) v. Nigeria, Communication No. 224/98,
decision adopted during the 28th
session, 23 October – 6 November 2000; para. 43 of the text published at:
89Communication No. 248/1987, G. Campbell v. Jamaica (Views adopted on 30 March 1992), p. 246, para.
6.3; emphasis added.
been detained.90 A fortiori, a delay of 45 days or more does not meet the
requirements of
article 9(2).91
Furthermore, it is not sufficient for the purposes of the Covenant, including
article 9(2) thereof, to arrest and detain a person on grounds of a presumed
connection
with subversive activities; the arrested and detained person must be given
explanations as to “the scope and meaning of ‘subversive activities’, which
constitute a
criminal offence under the relevant legislation”.92 According to the Human Rights
Committee, such explanations are particularly important where the authors
allege that
they have been prosecuted solely for their opinions contrary to article 19 of the
Covenant, which guarantees the right to freedom of expression.93
The Committee found no violation of article 9(2) of the Covenant where the
authors allegedly had to wait for seven and eight hours respectively before being
informed of the reasons for arrest, also complaining that they had not
understood the
charges for lack of a competent interpreter. The Committee concluded that the
police
formalities had been suspended for three hours until “the interpreter arrived, so
that the
accused could be duly informed in the presence of legal counsel”; furthermore,
the
interpreter was fully competent and appointed according to the rules.94
Consequently,
there was no violation of article 9(2) in this case.95 Similarly, where the author
alleged
that he was not promptly informed of the charges against him but where there
was
evidence that he had seen a lawyer during the first week of his detention, the
Committee
concluded that it was “highly unlikely that neither the author nor his ... counsel
were
aware of the reasons for his arrest”.96
Where the author complained that he was not informed about the charges
against him until three to four weeks after his arrest, the Committee held that a
“general
refutation by the State party is not sufficient to disprove the author’s claim”,
and,
consequently, the delay violated both article 9(2) and 9 (3) of the Covenant.97
It is not sufficient under article 9(2) simply to inform the person arrested and
detained that the deprivation of liberty has been carried out on the orders of the
President of the country concerned.98
*****
90Communication No. 597/1994, P. Grant v. Jamaica (Views adopted on 22 March 1996), in UN doc. GAOR,
A/51/40 (vol. II),
p. 212, para. 8.1.
91Communication No. 248/1987, G. Campbell v. Jamaica (Views adopted on 30 March 1992), p. 246, para.
6.3.
92Communication No. R.8/33, L. B. Carballal v. Uruguay (Views adopted on 27 March 1981), in UN doc.
GAOR, A/36/40,
pp. 128-129, paras. 12-13.
93Ibid., loc. cit.
94Communication No. 526/1993, M. and B. Hill v. Spain (Views adopted on 2 April 1997), in UN doc. GAOR,
A/52/40 (vol. II),
p. 17, para. 12.2.
95Ibid., loc. cit.
96Communication No. 749/1997, D. McTaggart v. Jamaica (Views adopted on 31 March 1998), in UN doc.
GAOR, A/53/40
(vol. II), p. 227, para. 8.1.
97Communication No. 635/1995, E. Morrison v. Jamaica (Views adopted on 27 July 1998), in UN doc. GAOR,
A/53/40 (vol. II),
pp. 123-124, para. 21.2.
98Communication No. 414/1990, P. J. Mika Miha v. Equatorial Guinea (Views adopted on 8 July 1994), in UN
doc. GAOR,
A/49/40 (vol. II), p. 99, para. 6.5.
The African Commission on Human and Peoples’ Rights has held that the
failure or negligence on the part of the security agents of a State party
“scrupulously” to
comply with the requirement to submit reasons for arrest and to inform the
persons
arrested promptly of any charges against them is a violation of the right to a fair
trial as
guaranteed by the African Charter.99 Article 6 of the African Charter was violated
where
the complainant was arrested in the interest of national security under the
Preventive
Custody Law of 1992 in Ghana; he was, however, never charged with any
offence and
never stood trial.100 In a case against the Sudan, the Commission also explained
that
article 6 of the African Charter “must be interpreted in such a way as to permit
arrests
only in the exercise of powers normally granted to the security forces in a
democratic
society”; since the wording of the relevant Decree allowed “individuals to be
arrested
for vague reasons, and upon suspicion, not proven acts”, it was “not in
conformity with
the spirit of the African Charter” and violated article 6 thereof.101
*****
With regard to article 5(2) of the European Convention, the European Court
has held that it
“contains the elementary safeguard that any person arrested should know
why he is being deprived of his liberty. This provision is an integral part of
the scheme of protection afforded by Article 5: by virtue of paragraph 2
any person arrested must be told, in simple, non-technical language that
he can understand, the essential legal and factual grounds for his
arrest, so as to be able, if he sees fit, to apply to a court to challenge its
lawfulness in accordance with paragraph 4. ... Whilst this information
must be conveyed ‘promptly’ (in French: ‘dans le plus court délai’), it need not
be related in its entirety by the arresting officer at the very moment of the
arrest. Whether the content and promptness of the information conveyed
were sufficient is to be assessed in each case according to its special
features.”102
It is thus not sufficient for the purpose of complying with article 5(2) that the
arresting officer simply tells the persons concerned that they are arrested under
a
particular law on suspicion of being terrorists, although it has been
considered to be
sufficient if “the reasons why they were suspected of being terrorists were ...
brought to
their attention during their interrogation” by the police; they must consequently
be
interrogated in sufficient detail “about their suspected involvement in specific
criminal
acts and their suspected membership of proscribed organisations”.103
Lawyers 183
99ACHPR, Huri-Laws (on behalf of the Civil Liberties Organisation) v. Nigeria, Communication No. 225/98,
Ordinary Session, 23 October – 6 November 2000, paras. 43-44 of the text of the decision as published at:
100ACHPR, Alhassan Abubakar v. Ghana, Communication No. 103/93, decision adopted during the
20thsession, October 1996, paras. 9-10
of the text of the decision as published at http://www1.umn.edu/humanrts/africa/comcases/103-93.html; like
other international
monitoring organs, where the respondent Government does not provide any substantive information in
reply to the petitioners’
allegations, the African Commission will decide the facts as alleged by the complainant; ibid., para. 10.
101ACHPR, Amnesty International and Others, Communications Nos. 48/90, 50/91, 52/91 and 89/93,
(decision not dated), para. 59 of the
text published at http://www1.umn.edu/humanrts/africa/comcases/48-90_50-91_52-91_89-93.html.
102Eur. Court HR, Case of Fox, Campbell and Hartley, judgment of 30 August 1990, Series A, No. 182, p. 19,
para. 40; emphasis added.
103Ibid., para. 41.
The European Court has further held that the terms of article 5(2) are “to be
interpreted ‘autonomously’, in particular in accordance with the aim and
purpose” of
article 5, “which are to protect everyone from arbitrary deprivations of liberty”.
The
term “arrest” thus “extends beyond the realm of criminal-law measures”, and
the words
“any charge” were not intended “to lay down a condition for its applicability, but
to
indicate an eventuality of which it takes account”.104 This interpretation is also
supported by the close link between article 5(2) and (4), because “any person
who is
entitled to take proceedings to have the lawfulness of his detention decided
speedily
cannot make effective use of that right unless he is promptly and adequately
informed
of the reasons why he has been deprived of his liberty”.105
Consequently, the European Court found a violation of article 5(2) in a case
where a woman who was in hospital to receive treatment on a voluntary basis
was
subsequently placed in isolation and informed “that she was no longer free to
leave
when she wished because of an order made ten days previously”. The Court
considered
that neither “the manner” in which the applicant was informed, “nor the time it
took to
communicate this information to her, corresponded to the requirements” of
article
5(2).106
In a case where the applicant, on the very day of his arrest, had been given a
copy of the arrest warrant that “set out not only the reasons for depriving him of
his
liberty but also the particulars of the charges against him”, it found that article
5(2) had
not been violated.107
*****
In order to comply with the requirement of information States may, as
evidenced above, have to resort to interpreters. As expressly stated in Principle
14 of
the Body of Principles for the Protection of All Persons under Any Form of
Detention
or Imprisonment, “a person who does not adequately understand or speak the
language
used by the authorities responsible for his arrest, detention or imprisonment is
entitled
to receive promptly in a language which he understands” information regarding,
inter
alia, the charges against him and the records of his arrest.
A person deprived of his or her liberty must be promptly informed of
the reasons therefor, in a language which he or she
understands and in sufficient detail so as to be enabled to request
a prompt decision by a judicial authority on the lawfulness of his or her
deprivation of liberty.
104Eur. Court HR, Van der Leer Case v. the Netherlands, judgment of 21 February 1990, Series A, No. 170-A,
p. 13, para. 27.
105Ibid., para. 28.
106Ibid., paras. 30-31.
107Eur. Court HR, Lamy Case v. Belgium, judgment of 30 March 1989, Series A, No. 151, p. 17, para. 32.
4.9 The right to be promptly brought before a judge

or other judicial officer
Article 9(3) of the International Covenant on Civil and Political Rights
provides that “anyone arrested or detained on a criminal charge shall be brought
promptly before a judge or other officer authorized by law to exercise judicial
power”.
In article 7(5) of the American Convention on Human Rights this right concerns
any
“person detained”. As to article 5(3) of the European Convention on Human
Rights,
this right appertains to “everyone arrested or detained in accordance with the
provisions of paragraph 1(c) of this article”, which concerns “the lawful arrest or
detention of a person effected for the purpose of bringing him before the
competent
legal authority on reasonable suspicion of having committed an offence or when
it is
reasonably considered necessary to prevent his committing an offence or fleeing
after
having done so”. The text of the African Charter does not specifically regulate
this
issue. However, according to article 7(1)(a) of the Charter, every individual shall
have
“the right to an appeal to competent national organs against acts of violating his
fundamental rights as recognized and guaranteed by conventions, laws,
regulations and
customs in force” (see also case-law as to art. 6 of the Charter, below).
*****
As noted by the Human Rights Committee, the first sentence of article 9(3) of
the Covenant “is intended to bring the detention of a person charged
with a
criminal offence under judicial control”.108
Although the term “promptly” must, according to the jurisprudence of the
Human Rights Committee, “be determined on a case-by-case-basis”, the delay
between
the arrest of an accused and the time before he is brought before a judicial
authority
“should not exceed a few days”.109 “In the absence of a justification for a
delay of four
days before bringing the author to a judicial authority”, this delay violated the
notion of
promptness in article 9(3).110 Furthermore, a one-week delay in a capital case
before the
author was first brought before a judge “cannot be deemed compatible with”
article 9(3).111Afortiori, where the complainant has been held for two and a half
months
or more before being brought before a judge, article 9(3) has also been
violated.112
*****
Lawyers 185
108Communication No. 521/1992, V. Kulomin v. Hungary (Views adopted on 22 March 1996), in UN doc.
GAOR, A/51/40
109Communication No. 373/1989, L. Stephens v. Jamaica (Views adopted on 18 October 1995), in UN doc.
GAOR, A/51/40
110Communication No. 625/1995, M. Freemantle v. Jamaica (Views adopted on 24 March 2000), in UN doc.
GAOR, A/55/40
(vol. II), p. 19, para. 7.4; emphasis added. See also violation of art. 9(3) where the delay exceeded eight
days, Communication No.
373/1989, L. Stephens v. Jamaica (Views adopted on 18 October 1995), in UN doc. GAOR, A/51/40 (vol. II), p.
9, para. 9.6.
111Communication No. 702/1996, C. McLawrence v. Jamaica (Views adopted on 18 July 1997), in UN doc.
GAOR, A/52/40
(vol. II), p. 231, para. 5.6.
112Communication No. 330/1988, A. Berry v. Jamaica (Views adopted on 7 April 1994), in UN doc. GAOR,
A/49/40 (vol. II),
pp. 26-27, para. 11.1.
In a case where the victims were arrested and kept in detention in Nigeria for a
lengthy period of time under the State Security (Detention of Persons) Act of
1984 and
the State Security (Detention of Persons) Amended Decree No. 14 (1994), the
African
Commission on Human and Peoples’ Rights concluded that the facts constituted
a
prima facie violation of the right not be subjected to arbitrary arrest and
detention as
guaranteed by article 6 of the African Charter. Under the terms of that Decree,
the
Government could detain people without charge for a three-month period in the
first
instance; the Decree likewise allowed the Government arbitrarily to hold people
critical
of its policies for a period of three months without having to submit any
explanations
and without there being any possibility for the victims “to challenge the arrest
and
detention before a court of law”. Considering that the Government had
submitted no
arguments in defence of the Decree, either as to its justification in general or as
applied
in this particular case, the Commission held that it had violated article 6 of the
African
Charter.113
The African Commission has also importantly held that the “right to be tried
within a reasonable time by an impartial court or tribunal” as guaranteed by
article
7(1)(d) of the African Charter is reinforced by its Resolution on Fair Trial,
according to
which persons “arrested or detained shall be brought promptly before a judge or
other
officer authorized by law to exercise judicial power and shall be entitled to trial
within
reasonable time or to be released”.114
In the case of Huri-Laws against Nigeria, the Commission therefore concluded
that Nigeria had violated both articles 7(1)(d) and 26 by failing to bring the two
alleged
victims promptly before a judge or other judicial officer for trial; the victims had
been
detained for weeks and months respectively without any charges being brought
against
them.115
*****
In the case of Castillo-Páez, the Inter-American Court of Human Rights
concluded that article 7(5) of the American Convention on Human Rights had
been
violated since the victim “had not been brought before a competent court within
24
hours or otherwise if distance was a factor, nor within fifteen days on suspicion
of
terrorism, pursuant to Article 7, paragraph 5, of the Convention, and Article 2,
paragraph 20(c) of the Constitution of Peru”; indeed, the police officers had
denied his
arrest and hidden the detainee so that he could not be located by the
magistrate, whom
they also provided with altered logs of entry of detainees.116 Article 7(5) was of
course
also violated in the case of Suárez-Rosero, where the victim never appeared
before a
competent judicial authority during the proceedings.117
113ACHPR, International Pen and Others v. Nigeria, Communications Nos. 137/94, 139/94, 154/96 and
161/97, decision adopted on 31 October
1998, paras. 83-84 of the text as published at http://www1.umn.edu/humanrts/africa/comcases/137-94_139-
94_154-96_161-97.html.
114ACHPR, Huri-Laws (on behalf of Civil Liberties Organisation) v. Nigeria, Communication No. 225/98,
decision adopted during the 28th Ordinary
session, 23 October – 6 November 2000, para. 45 of the text as published at
115Ibid., para. 46.
116I-A Court HR, Castillo Páez Case v. Peru, judgment of November 3, 1997, in OAS doc. OAS/Ser.L/V/III.39,
doc. 5, Annual Report of
the Inter-American Court of Human Rights 1997, p. 263, paras. 56-58.
117I-A Court HR, Suárez Rosero Case, judgment of November 12, 1997, ibid. at pp. 296-297, paras. 53-56.
The case of Castillo Petruzzi et al.
In the case of Castillo Petruzzi et al., the Inter-American Court expressed the view that
laws that allow the authorities to hold a person suspected of the crime of treason in
preventive custody for 15 days, with the possibility of a 15-day extension, without
bringing that person before a judicial authority, are contrary to article 7 of the
Convention.118 The detention in this case “occurred amid a terrible disruption of
public law and order that escalated in 1992 and 1993 with acts of terrorism that left
many victims in their wake”, and, “in response to these events, the State adopted
emergency measures, one of which was to allow those suspected of treason to be
detained without a lawful court order”.119 To Peru’s allegation that the declared state
of emergency involved a suspension of article 7, the Court replied that it had
“repeatedly held that the suspension of guarantees must not exceed the
limits strictly required and that ‘any action on the part of the public
authorities that goes beyond those limits, would ... be unlawful.’ The limits
imposed upon the actions of a State come from ‘the general requirement
that in any state of emergency there be appropriate means to control the
measures taken, so that they are proportionate to the needs and do not
exceed the strict limits imposed by the Convention or derived from it’.”120
In this case, “approximately 36 days ... elapsed between the time of detention and the
date on which the alleged victims were brought before a judicial authority”, and this
time was, in the view of the Court “excessive and contrary to the provisions of the
Convention”.121
*****
As to article 5(3) of the European Convention, no violation of article 5(3) “can
arise if the arrested person is released ‘promptly’ before any judicial control of
his
detention would have been feasible”; “if the arrested is not released promptly,
he is
entitled to a prompt appearance before a judge or judicial officer”.122
As to the assessment of the term “promptness”, it “has to be made in the light
of the object and purpose of” article 5, which is to protect “the individual against
arbitrary interferences by the State with his right to liberty”; “judicial control of
interferences by the executive with the individual’s right to liberty is an essential
feature
of the guarantee embodied in [this article and] is intended to minimise the risk of
arbitrariness”; moreover, “judicial control is implied by the rule of law, ‘one of
the
fundamental principles of a democratic society’ ... and ‘from which the whole
Convention draws its inspiration’”.123
Lawyers 187
118I-A Court HR, Castillo Petruzzi et al. Case v. Peru, judgment of May 30, 1999, in OAS doc.
Report of the Inter-American Court of Human Rights 1999, p. 255, para. 110.
119Ibid., para. 109.
120Ibid., loc. cit.; footnote omitted.
121Ibid., p. 256, para. 111.
122Eur. Court HR, Case of Brogan and Others v. the United Kingdom, judgment of 29 November 1988,
Series A, No. 145, pp. 31-32, para. 58.
123Ibid., para. 58 at p. 32.
Comparing the English and French texts of the provision, the Court
concluded that
“the degree of flexibility attaching to the notion of ‘promptness’ is limited,
even if the attendant circumstances can never be ignored for the purposes
of the assessment under paragraph 3. Whereas promptness is to be
assessed in each case according to its special features ... the
significance to be attached to those features can never be taken to the
point of impairing the very essence of the right guaranteed by
Article 5 § 3, that is to the point of effectively negativing the State’s
obligation to ensure a prompt release or a prompt appearance before a
judicial authority”.124
In the case of Brogan and Others, which concerned the arrest and detention by
virtue of powers granted under special legislation of persons suspected of
involvement
in terrorism in Northern Ireland, the issue to be decided by the Court was
whether,
“having regard to the special features relied on by the Government, each
applicant’s
release can be considered as ‘prompt’ for the purposes of” article 5(3); it is clear
that
none of the applicants had been brought before a judge or judicial officer during
his
time in custody.125 The Court did accept that
“subject to the existence of adequate safeguards, the context of terrorism
in Northern Ireland has the effect of prolonging the period during which
the authorities may, without violating Article 5 § 3, keep a person suspected
of serious terrorist offences in custody before bringing him before a judge
or other judicial officer”.126
However, the difficulties of judicial control invoked by the Government
could not “justify, under Article 5 § 3, dispensing altogether with ‘prompt’ judicial
control”,127 because “the scope for flexibility in interpreting and applying the
notion of
‘promptness’ is very limited”.128 It followed that “even the shortest of the four
periods
of detention, namely the four days and six hours spent in police custody” by one
applicant, fell “outside the strict constraints as to time permitted by the first part
of
Article 5”. In the words of the Court,
“to attach such importance to the special features of this case as to justify
so lengthy a period of detention without appearance before a judge or
other judicial officer would be an unacceptably wide interpretation of the
plain meaning of the word ‘promptly’. An interpretation to this effect
would import into Article 5 § 3 a serious weakening of a procedural
guarantee to the detriment of the individual and would entail consequences
impairing the very essence of the right protected by this provision. The
Court thus has to conclude that none of the applicants was either brought
‘promptly’ before a judicial authority or released ‘promptly’ following his
arrest. The undoubted fact that arrest and detention of the applicants were
124Ibid., pp. 32-33, para. 59; emphasis added.
125Ibid., p. 33, para. 60.
126Ibid., para. 61.
127Ibid., loc. cit.
128Ibid., p. 33, para. 62.
inspired by the legitimate aim of protecting the community as a whole from
terrorism is not on its own sufficient to ensure compliance with the
specific requirements of Article 5 § 3.”129
Lastly, article 5(4) of the European Convention was also violated in a case
where a conscript was placed in detention on remand during military
manoeuvres and
did not appear before the Military Court until five days after his arrest; the
manoeuvres,
in which the military members of the court participated, could not be allowed to
justify
such delay and arrangements should have been made to enable the Military
Court “to sit
soon enough to comply with the requirements of the Convention, if necessary on
Saturday or Sunday”.130
4.9.1 The legitimate decision-making organ
In the case of Kulomin, whose pre-trial detention had been extended several
times by the public prosecutor, the Human Rights Committee stated that it
“considers that it is inherent to the proper exercise of judicial power that it
be exercised by an authority which is independent, objective and impartial
in relation to the issues dealt with”.131
Consequently, in that particular case, the Committee was “not satisfied that
the public prosecutor could be regarded as having the institutional objectivity
and
impartiality necessary to be considered an ‘officer authorized by law to exercise
judicial
power’ within the meaning of” article 9(3) of the Covenant.132
*****
“Before an ‘officer’ can be said to exercise ‘judicial power’ within the meaning
of [article 5(3) of the European Convention,] he or she must satisfy certain
conditions
providing a guarantee to the person detained against any arbitrary or unjustified
deprivation of liberty”.133 Consequently,
“the ‘officer’ must be independent of the executive and the parties. ... In
this respect, objective appearances at the time of the decision on detention
are material: if it appears at that time that the ‘officer’may later intervene in
subsequent criminal proceedings on behalf of the prosecuting authority,
his independence and impartiality may be open to doubt. ... The ‘officer’
must hear the individual brought before him in person and review, by
reference to legal criteria, whether or not the detention is justified. If it is
not so justified, the ‘officer’ must have the power to make a binding order
for the detainee’s release...”.134
Lawyers 189
129Ibid., pp. 33-34, para. 62.
130Eur. Court HR, Case of Koster v. the Netherlands, judgment of 28 November 1991, Series A, No. 221, p.
10, para. 25.
131Communication No. 521/1992, Kulomin v. Hungary (Views adopted on 22 March 1996), in UN doc. GAOR,
A/51/40 (vol. II),
p. 81, para. 11.3; emphasis added.
132Ibid., loc. cit.
133Eur. Court HR, Case of Assenov and Others v. Bulgaria, judgment of 28 October 1998, Reports 1998-VIII,
p. 3298, para. 146.
134Ibid., loc. cit.
It follows that, where an “officer” does not have the power “to make legally
binding decisions as to the detention or release of a suspect”, he cannot be
considered
to be “sufficiently independent” for the purposes of article 5(3).135 Further, where
prosecutors approving the investigator’s decision on the question of detention
can
subsequently act against the detainee in criminal proceeedings, they have been
considered not to be “sufficiently independent or impartial for the purposes of”
article
5(3).136 Similarly, where a District Attorney ordered the applicant’s detention on
remand, conducted the investigation and subsequently acted as prosecuting
authority in
drawing up the indictment, article 5(3) was found to have been violated.137
According
to the European Court,
“the Convention does not rule out the possibility of the judicial officer
who orders the detention carrying out other duties, but this impartiality is
capable of appearing open to doubt ... if he is entitled to intervene in the
subsequent criminal proceedings as a representative of the prosecuting
authority”.138
A person arrested or detained on a criminal charge must be promptly
brought before a judge or other officer, who is independent and impartial
and who has the power to make a binding order for release; the term
“promptly” must be interpreted strictly and cannot be deprived of its
essence even in crisis situations.
5. The Right to Trial within a
Reasonable Time or to Release
pending Trial
In addition to the requirement of “promptness” dealt with in section 4.9
above, article 9(3) of the International Covenant on Civil and Political Rights,
article
7(5) of the American Convention on Human Rights and article 5(3) of the
European
Convention on Human Rights provide that everyone detained shall be entitled to
trial
within “a reasonable time” or to release pending trial. This is a logical
protection in
view both of the fact that everyone charged with a crime has the right
to be
presumed innocent until proved guilty and of the fact that deprivation
of liberty
must be an exceptional measure.
135Ibid., p. 3299, para. 148.
136Ibid., p. 3299, para. 149.
137Eur. Court HR, Huber Case v. Switzerland, judgment of 23 October 1990, Series A, No. 188, p. 17, para.
41.
138Ibid., p. 18, para. 43.
5.1 The notion of “reasonable time”

The Human Rights Committee has held that “what constitutes ‘reasonable
time’ is a matter of assessment for each particular case”.139 However, a lack of
“adequate budgetary appropriations for the administration of criminal justice ...
does
not justify unreasonable delays in the adjudication of criminal cases. Nor does
the fact
that investigations into a criminal case are, in their essence, carried out by way
of written
proceedings, justify such delays”.140 In other words, considerations of
“evidence-gathering” do not justify a detention lasting some four years after the
victim’s arrest, and violate article 9(3) of the Covenant.141 In another case the
Committee found a violation of article 9(3) because the author had been
detained for 31
months simply on charges of belonging to a political party considered illegal
under the
country’s then one-party constitution.142 Furthermore, a detention of four years
and
four months without any trial date being set was contrary to article 9(3) of the
Covenant.143 In a case where almost four years elapsed between the judgement
of the
Court of Appeal and the beginning of the retrial, a period during which the author
was
kept in detention, both article 9(3) and article 14(3)(c) were found to have been
violated.144
In the absence of “satisfactory” explanations from the State party as to why
the author was detained on remand without being tried for one year and nine
months,
the Committee concluded that this delay too was “unreasonable” and violated
article
9(3).145
The complaints submitted under the International Covenant concerning
undue delay in being brought to trial have often been considered simultaneously
under
articles 9(3) and 14(3)(c).146 Further examples will therefore also be considered
under
the latter provision, which will be dealt with in Chapter 6 on The Right to a Fair
Trial:
Part I – From Investigation to Trial.
*****
Lawyers 191
139Communication No. 336/1988, N. Fillastre v. Bolivia (Views adopted on 5 November 1991), in UN doc.
GAOR, A/47/40,
p. 306, para. 6.5.
140Ibid., loc. cit.
141Ibid.
142Communication No. 314/1988, P. Chiiko Bwalya v. Zambia (Views adopted on 14 July 1993), in UN doc.
GAOR, A/48/40
(vol. II), p. 54, para. 6.3.
143Communication No. 386/1989, F. Kone v. Senegal (Views adopted on 21 October 1994), in UN doc.
GAOR, A/50/40 (vol. II),
p. 8, para. 8.6.
144Communication No.447/1991, L. Shalto v. Trinidad and Tobago (Views adopted on 4 April 1995), in UN
doc. GAOR, A/50/40
(vol. II), p. 19, para. 7.2.
145Communication No. 733/1997, A. Perkins v. Jamaica (Views adopted on 19 March 1998), in UN doc.
GAOR, A/53/40
(vol. II), p. 210, para. 11.3.
146See, for example, Communication No. 705/1996, D. Taylor v. Jamaica (Views adopted on 2 April 1998), in
UN doc. GAOR,
A/53/40 (vol. II), p. 179, para. 7.1; the Committee found a violation both of article 9(3) and of article 14(3)(c)
since there had been a
lapse of 27 months between arrest and trial.
With regard to the right to trial within a reasonable time or to release pending
trial guaranteed in article 5(3) of the European Convention, the European Court
of
Human Rights has held that “it is the provisional detention of accused persons
which
must not ... be prolonged beyond a reasonable time”, and that the end of the
period
with which this provision is concerned is the day “on which the charge is
determined,
even if only by a court of first instance”. It follows that it is not the day on which
the
judgement becomes final.147 Depending on the circumstances, however, the final
date
of the period to be taken into consideration may instead be the day of the
accused’s
release after having deposited his security, for instance.148
“The reasonableness of an accused person’s continued detention must be
assessed in each case according to its special features”, and “the factors which
may be
taken into consideration are extremely diverse”; there is consequently a
“possibility of
wide differences in opinion in assessment of the reasonableness of a given
detention”.149 Accordingly,
“it falls in the first place to the national judicial authorities to ensure that
the pre-trial detention of an accused person does not exceed a reasonable
time. To this end, they must examine all the circumstances arguing for and
against the existence of a genuine requirement of public interest justifying,
with due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty and set these out in
their decisions on the applications for release. It is essentially on the basis
of the reasons given in these decisions and of the true facts mentioned by
the detainee in his applications for release and his appeals that the Court is
called upon to decide whether or not there has been a violation of article
5 § 3.
The persistence of reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the validity of the
continued detention, but, after a certain lapse of time, it no longer suffices:
the Court must then establish whether the other grounds cited by the
judicial authorities continued to justify the deprivation of liberty. Where
such grounds are ‘relevant’ and ‘sufficient’, the Court must also
ascertain whether the competent national authorities displayed
‘special diligence’ in the conduct of the proceedings. ...”150
147Eur. Court HR, Wemhoff Case v. the Federal Republic of Germany, judgment of 27 June 1968, Series A,
No. 7, p. 22, para. 5 and p. 23,
para. 9.
148Eur. Court HR, Case of Van der Tang v. Spain, judgment of 13 July 1995, Series A, No. 321, p. 18, para.
58
No. 7, p. 24, para. 10.
150Eur. Court HR, Case of Assenov and Others v. Bulgaria, judgment of 28 October 1998, Report 1998-VIII,
p. 3300, para. 154; emphasis
added.
The case of Assenov
In the case of Assenov, the applicant had been charged with sixteen or more burglaries
and it was feared that he would re-offend if released, but the European Court
concluded that he had been denied a “trial within a reasonable time” in violation of
article 5(3); while it had taken two years for the case to come to trial, the Court noted
that during one of those years “virtually no action was taken in connection with the
investigation: no new evidence was collected and Mr. Assenov was questioned only
once”.151 The Court added, moreover, that, “given the importance of the right to
liberty, and the possibility, for example, of copying the relevant documents rather
than sending the original file to the authority concerned on each occasion, the
applicant’s many appeals for release should not have been allowed to have the effect
of suspending the investigation and thus delaying his trial”. An additional
consideration was the fact that, since the applicant was a minor, it was “more than
usually important that the authorities displayed special diligence in ensuring that he
was brought to trial within a reasonable time”.152
Danger of absconding: With regard to the danger of an accused person’s
absconding, the European Court has emphasized that this danger “cannot be
gauged
solely on the basis of the severity of the sentence risked”, but “must be assessed
with
reference to a number of other relevant factors which may either confirm the
existence
of a danger of absconding or make it appear so slight that it cannot justify
detention
pending trial”.153 For this reason to be given credit, the domestic courts must
explain
why there is a danger of absconding and not simply confirm the detention in “an
identical, not to say stereotyped, form of words, without in any way explaining
why
there was a danger of absconding”,154 and why they have not sought to “counter
it by,
for instance, requiring the lodging of a security and placing him under court
supervision”.155
Suspected involvement in serious offences: In a case involving pre-trial
detention of a person accused of drug trafficking, the European Court agreed
“that the
alleged offences were of a serious nature” and that “the evidence incriminating
the
applicant was cogent”; it emphasized, nonetheless, that “the existence of a
strong
suspicion of the involvement of the person concerned in serious offences, while
constituting a relevant factor, cannot alone justify a long period of pre-trial
detention”.156
Lawyers 193
151Ibid., p. 3301, paras. 157-158.
152Ibid., p. 3301, para. 157.
153Eur. Court HR, Case of Ya?ci and Sargin v. Turkey, judgment of 8 June 1995, Series A, No. 319-A, p. 19,
para. 52.
154Ibid., loc. cit. In this case there was a breach of article 5(3) of the Convention, ibid., p. 19, para. 55.
155Eur. Court HR, Case of Tomasi v. France, judgment of 27 August 1992, Series A, No. 241-A, p. 37, para.
98.
63.
Risk of relapse into crime: The risk of repetition of offences is another
ground that may justify detention on remand, and in the case of Toth this
ground, as well
as the danger of the applicant’s absconding, constituted “relevant and sufficient”
grounds for justifying his detention on remand, which lasted a little more than
two years
and one month.157 The European Court noted that the “contested (domestic)
decisions
took account of the nature of the earlier offences and the number of sentences
imposed
as a result”, and concluded “that the national courts could reasonably fear that
the
accused would commit new offences”.158
Prejudice to public order: The European Court has accepted that, “by
reason of their particular gravity and public reaction to them, certain offences
may give
rise to public disquiet capable of justifying pre-trial detention, at least for a
time”. In
explaining this view, it stated that
“in exceptional circumstances – and subject, obviously, to there being
sufficient evidence ... – this factor may therefore be taken into account for
the purposes of the Convention, in any event in so far as domestic law
recognises ... the notion of prejudice to public order caused by an offence.
However, this ground can be regarded as relevant and sufficient only
provided that it is based on facts capable of showing that the accused’s
release would actually prejudice public order. In addition, detention will
continue to be legitimate only if public order remains actually threatened;
its continuation cannot be used to anticipate a custodial sentence...”.159
In the case of Tomasi – who was accused of participation in a terrorist attack
killing one person, although finally acquitted – the Court accepted that it was
“reasonable to assume that there was a risk of prejudice to public order at the
beginning
[of the detention], but [that] it must have disappeared after a certain time”.160
The question arises, however, whether, in a democratic society
governed
by the rule of law, pre-trial detention, however brief, can ever be
legally justified
on the basis of a legal notion so easily abused as that of public order.
Pressure on witnesses and risk of collusion: A further ground justifying
pre-trial detention is the risk of pressure being brought to bear on the witnesses
and of
collusion between co-accused; however, although such risk is genuine at the
outset of
the detention, it may gradually diminish, or even disappear altogether.161 It will
be for
the national courts and ultimately the European Court of Human Rights to assess
such
risks.
157Eur. Court HR, Case of Toth v. Austria, judgment of 12 December 1991, Series A, No. 224, p. 19, paras.
69-70 and 73.
158Ibid., p. 19, para. 70.
91.
160Ibid., loc. cit.
161Ibid., pp. 36-37, paras. 92-95.
Conduct of the domestic authorities: When the grounds invoked to justify
the detention are, in principle, both “relevant” and “sufficient”, the European
Court
may still have to assess the conduct of the domestic authorities themselves to
justify the
time spent in detention on remand under article 5(3).162 In this respect it has
pointed
out that “the right of an accused in custody to have his case examined with all
necessary
expedition must not hinder the efforts of the courts to carry out their tasks with
proper
care”.163
The Court thus found that there was no breach of article 5(3) in a case where
the applicant had been held in pre-trial detention for about three years and two
months, after
his case involving drug-trafficking was joined with another criminal investigation,
thus
making it part of a complex process. The Court was satisfied that “the risk of the
applicant’s absconding persisted throughout the whole of his detention on
remand, the
protracted length of which ... was not attributable to any lack of special diligence
on the
part of the Spanish authorities”.164
A pre-trial detention of five years and seven months was however considered to
violate article 5(3) of the Convention where the French courts had not acted
“with the
necessary promptness” and the length of the contested detention did not
“appear to be
essentially attributable either to the complexity of the case or to the applicant’s
conduct”.165 As can be seen, the conduct of the detained person may thus also
be a
factor to consider in assessing the reasonableness of the pre-trial detention.166
5.2 Alternatives to detention on remand:
guarantees to appear at trial
Article 9(3) of the International Covenant, article 7(5) of the American
Convention and article 5(3) of the European Convention provide that release
from
detention may be conditioned by guarantees to appear for trial.
*****
With regard to article 9(3) of the Covenant, the Human Rights Committee has
consistently held that
“pre-trial detention should be the exception and that bail should be
granted, except in situations where the likelihood exists that the accused
would abscond or destroy evidence, influence witnesses or flee from the
jurisdiction of the State party”.167
Lawyers 195
162Ibid., pp. 37-39, paras. 99-103.
72.
164Ibid., p. 22, para. 76.
102.
166Eur. Court HR, Case of Clooth v. Belgium, judgment of 12 December 1991, Series A, No. 225, pp. 15-16,
paras. 41-44.
167Communication No. 526/1993, M. and B. Hill v. Spain (Views adopted on 2 April 1997), UN doc. GAOR,
A/52/40 (vol. II),
p. 17, para. 12.3.
The Committee is also of the opinion that “the mere fact that the accused is a
foreigner does not of itself imply that he may be held in detention pending
trial”.168
Furthermore, “the mere conjecture of a State party that a foreigner might leave
its
jurisdiction if released on bail does not justify an exception to the rule laid down
in”
article 9(3); consequently, in a case where the State party provided no
information to
substantiate its concern that the accused would leave the country and as to
“why it
could not be addressed by setting an appropriate sum of bail and other
conditions of
release”, the Committee concluded that article 9(3) had been violated.169
*****
The European Court has emphasized that, “when the only remaining [reason]
for continued detention is the fear that the accused will abscond and thereby
subsequently avoid appearing for trial, his release pending trial must be ordered
if it is
possible to obtain from him guarantees that will ensure such appearance”;
where,
however, the accused person has not acted in such way as to suggest that he
would be
prepared to furnish such guarantees and where, moreover, the judicial
authorities
cannot be criticized for the conduct of the case, the Court has concluded that
there has
been no violation of article 5(3) of the Convention.170
A person detained on a criminal charge has the right to trial within a
reasonable time or to release pending trial. The reasonableness of
pre-trial detention is assessed in the light of all circumstances of the
particular case, such as:
_ the gravity of the offences;
_ the risk of absconding;
_ the risk of influencing witnesses and of collusion with co-defendants;
_ the detainee’s behaviour;
_ the conduct of the domestic authorities,
including the complexity of the investigation.
Whenever feasible, release should be granted pending trial, if necessary
by
ordering guarantees that the accused person will appear at his or her trial.
Throughout detention the right to presumption of innocence
must be guaranteed.
169Ibid.
No. 7, p. 25, para. 15.
6. The Right to Have the

Lawfulness of the Detention
Decided Speedily or Without
Delay by a Court
Article 9(4) of the Covenant reads as follows:
“Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that that court may
decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful.”
Article 7(6) of the American Convention reads:
“Anyone who is deprived of his liberty shall be entitled to recourse to a
competent court, in order that the court may decide without delay on the
lawfulness of his arrest or detention and order his release if the arrest or
detention is unlawful. In States Parties whose laws provide that anyone
who believes himself to be threatened with deprivation of his liberty is
entitled to recourse to a competent court in order that it may decide on the
lawfulness of such threat, this remedy may not be restricted or abolished.
The interested party or another person on his behalf is entitled to seek
these remedies.”
Article 5(4) of the European Convention provides that
“Everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall
be decided speedily by a court and his release ordered if the detention is not
lawful.”
*****
It is noteworthy that these important legal guarantees are applicable to
all deprivations of liberty, whether in criminal or in administrative
cases.171 The
Human Rights Committee has also held that a disciplinary penalty imposed on a
conscript “may fall within the scope of application of” article 9(4):
“... if it takes the form of restrictions that are imposed over and above the
exigencies of normal military service and deviate from the normal
conditions of life within the armed forces of the State party concerned. In
order to establish whether this is so, account should be taken of a whole
range of factors such as the nature, duration, effects and manner of
execution of the penalty or measure in question”.172
Lawyers 197
171As to article 9(4) of the Covenant, see General Comment No. 8, in United Nations Compilation of General
172Communication No. 265/1987, A. Vuolanne v. Finland (Views adopted on 7 April 1989), in UN doc. GAOR,
A/44/40,
pp. 256-257, para. 9.4.
The Vuolanne and Hammel cases
Article 9(4) was applicable in the case of Vuolanne, where the author had been held in
solitary confinement for ten days and nights, a fact that was “in itself outside the usual
service and exceeds the normal restrictions that military life entails”.173 Although the
disciplinary punishment had been imposed by an administrative authority, the State
party was under an obligation “to make available to the person detained the right of
recourse to a court of law”, although, in this particular case, it did not matter
“whether the court would be civilian or military”.174 In the Hammel case, where the
author had no possibility of taking proceedings before a court to determine the
lawfulness of his detention for the purpose of expulsion, the Committee likewise
concluded that article 9(4) had been violated.175
The right to challenge the lawfulness of one’s deprivation of liberty must be
effectively available, and the Committee held that there had been a violation
of
article 9(4) where the person deprived of liberty had been held incommunicado
and
thereby been “effectively barred from challenging his arrest and detention”.176
Similarly, in a case where the author could, in principle, have applied to the
courts for a writ of habeas corpus, but where it was uncontested that he had no
access
to legal representation throughout his detention, the Committee concluded that
article
9(4) of the Covenant had been violated.177 On the other hand, where there was
no
evidence that either the author or his legal representative applied for such a
writ, the
Committee was unable to conclude that the former “was denied the opportunity
to
have the lawfulness of his detention reviewed in court without delay”.178
Lastly, where the writ of habeas corpus has been inapplicable to persons
deprived of their liberty, the Committee has found a violation of article 9(4) since
they
were denied an effective remedy to challenge their arrest and detention.179
173Ibid., p. 257, para. 9.5.
174Ibid., para. 9.6.
175Communication No. 155/1983, E. Hammel v. Madagascar (Views adopted on 3 April 1987), in UN doc.
GAOR, A/42/40,
p. 138, para. 20.
176Communication No. 84/1981, H. G. Dermit on behalf of G. I. and H. H. Dermit Barbato (Views adopted on
21 October 1982),
in UN doc. GAOR, A/38/40, para. 10 at p. 133.
A/49/40 (vol. II),
pp. 26-27, para. 11.1.
178Communication No. 373/1989, L. Stephens v. Jamaica (Views adopted on 18 October 1995), in UN doc.
GAOR, A/51/40
(vol. II), p. 9, para. 9.7.
179See, for example, Communication No.R.2/9, E. D. Santullo Valcada v. Uruguay (Views adopted on 26
October 1979), in UN
doc. GAOR, A/35/40, p. 110, para. 12, and Communication No. R.1/4, W. T. Ramírez v. Uruguay (Views
adopted on 23 July 1980),
para. 18 at p. 126.
6.1 The legal procedures complying with this
requirement
It is clear from the terms of the treaty provisions quoted above that the legality
of the detention must be determined by a court. Consequently, an appeal
against a
detention order to the Minister of the Interior, for instance, does not comply with
the
requirements of article 9(4) of the International Covenant on Civil and Political
Rights.
Although the Committee considers that an appeal provides “for some measure of
protection and review of the legality of the detention”, it “does not satisfy the
requirements of” article 9(4),
“which envisages that the legality of detention will be determined by a
court so as to ensure a higher degree of objectivity and independence in
such control”.180
Thus, where the author had been detained under the Finnish Aliens Act under
orders of the police, the lawfulness of the detention could not be reviewed by a
court
until, after seven days, the detention order had been confirmed by the Minister
of the
Interior. In the Committee’s view such delay violated article 9(4), according to
which a
detained person must be able “to take proceedings before a court, in order that
that
court may decide without delay on the lawfulness of his detention and order his
release if
the detention is not lawful”.181
The case of A. v. Australia
Article 9(4) was violated in a case concerning a Cambodian citizen who had applied
for refugee status in Australia, where “the courts’ control and power to order the
release of an individual was limited to an assessment of whether this individual was a
‘designated person’ within the meaning of the Migration Amendment Act”; if “the
criteria for such determination were met, the courts had no power to review the
continued detention of an individual or to order his/her release”.182
However, in the opinion of the Committee:
“Court review of the lawfulness of detention under article 9, paragraph 4,
which must include the possibility of ordering release, is not limited to mere
compliance of the detention with domestic law. While domestic legal systems
may institute differing methods for ensuring court review of administrative
detention, what is decisive for the purposes of article 9, paragraph 4, is
that such review is, in its effects, real and not merely formal.
Lawyers 199
180Communication No. 291/1988, M. I. Torres v. Finland (Views adopted on 2 April 1990), in UN doc. GAOR,
A/45/40 (vol. II),
pp. 99-100, para. 7.2.
181Ibid., at p. 100.
182Communication No. 560/1993, A. v. Australia (Views adopted on 3 April 1997), in UN doc. GAOR, A/52/40
(vol. II), p. 143,
para. 9.5.
The case of A. v. Australia (cont.d)
By stipulating that the court must have the power to order release ‘if the
detention is not lawful’, article 9, paragraph 4, requires that the court be
empowered to order release, if the detention is incompatible with the
requirements in article 9, paragraph 1, or in other provisions of the
Covenant. This conclusion is supported by article 9, paragraph 5, which
obviously governs the granting of compensation for detention that is
‘unlawful’ either under the terms of domestic law or within the meaning of
the Covenant.”183
Since, in this particular case, the available court review was “limited to a formal
assessment of the self-evident fact” that the author was a “designated person” within
the meaning of Australian migration law, the Committee concluded that his right to
have his detention reviewed by a court, as guaranteed by article 9(4) of the Covenant,
was violated.184
*****
The Inter-American Court of Human Rights consistently examines article
7(6) of the American Convention on Human Rights jointly with article 25,
regarding the
right to judicial protection, which reads as follows:
“1. Everyone has the right to simple and prompt recourse, or any other
effective recourse, to a competent court or tribunal for protection against
acts that violate his fundamental rights recognized by the constitution or
laws of the state concerned or by this Convention, even though such
violation may have been committed by persons acting in the course of their
official duties.
2. The States Parties undertake:
a. To ensure that any person claiming such remedy shall have his
right determined by the competent authority provided for by the legal
system of the State;
b. To develop the possibilities of judicial remedy; and
c. To ensure that the competent authorities shall enforce such
remedies when granted.”
The Inter-American Court has consistently held that “the right to a simple and
prompt recourse or any other effective remedy filed with the competent court
that
protects that person from acts that violate his basic rights
183Ibid., pp. 143-144, para. 9.5; emphasis added.
184Ibid., at p. 144.
‘is one of the fundamental pillars not only of the American Convention,
but of the very rule of law in a democratic society in the terms of the
Convention. ... Article 25 is closely linked to the general obligation
contained in Article 1(1) of the American Convention, in that it assigns
duties of protection to the States Parties through their domestic
legislation’.”185
Furthermore,
“‘the absence of an effective remedy to violations of the rights recognized
by the Convention is itself a violation of the Convention by the State Party
in which the remedy is lacking. In that sense, it should be emphasized that,
for such a remedy to exist, it is not sufficient that it be provided for by the
Constitution or by law or that it be formally recognized, but rather it must
be truly effective in establishing whether there has been a violation of
human rights and in providing redress’.”186
In the view of the Court, “this conclusion is true in ordinary and extraordinary
circumstances”, and, as will be seen in Chapter 16 of this Manual, not even a
declaration
of state of emergency can be allowed “‘to entail the suppression or
ineffectiveness of
the judicial guarantees that the Convention requires the States Parties to
establish for
the protection of the rights not subject to derogation or suspension by the state
of
emergency’”.187
In the case of Castillo Petruzzi et al., the Inter-American Court found a violation
of both article 7(6) and article 25, since the applicants, who were subsequently
convicted of treason by a “faceless” military tribunal, had no possibility of
recourse to
judicial guarantees: one decree-law which regulated the crime of treason
“denied
persons suspected of terrorism or treason the right to bring actions seeking
judicial
guarantees”, and a second decree-law amended the Habeas Corpus and Amparo
Act to
the effect that “the writ of habeas corpus was impermissible when ‘petitioner’s
case is in
its examining phase or when petitioner is on trial for the very facts against which
remedy is being sought’”.188
In the case of Suárez Rosero, the Court again emphasized that the remedies
governed by article 7(6) “must be effective, since their purpose ... is to obtain
without
delay a decision ‘on the lawfulness of [his] arrest or detention,’ and, should they
be unlawful, to
obtain, also without delay, an ‘order [for] his release”; the Court further invoked
its
Advisory Opinion on Habeas Corpus in Emergency Situations, where it held that
“‘in order for habeas corpus to achieve its purpose, which is to obtain a
judicial determination of the lawfulness of a detention, it is necessary that
the detained person be brought before a competent judge or tribunal
with jurisdiction over him (emphasis added). Here habeas corpus
performs a vital role in ensuring that a person’s life and physical integrity
are respected, in preventing his disappearance or the keeping of his
Lawyers 201
185I-A Court HR, Castillo Petruzzi et al. Case v. Peru, judgment of May 30, 1999, in OAS doc.
188Ibid., pp. 275-276, paras. 179-180 and p. 277, para. 188.
whereabouts secret and in protecting him against torture or other cruel,
inhuman or degrading punishment or treatment. ...’”189
In this particular case, the writ of habeas corpus was disposed of by the
President of the Supreme Court more than fourteen months after it was filed,
and,
contrary to articles 7(6) and 25 of the American Convention, Mr. Suárez Rosero
did
not, consequently, “have access to simple, prompt and effective recourse”.190
Lastly, article 7(6) of the American Convention was violated in a case where
the Peruvian military refused to abide by the decision of the Public Law Chamber
of the
Superior Court of Justice in Lima, which had upheld a petition for habeas corpus;
the
military ignored the decision and went ahead with the arrest.191
*****
The notion of “lawfulness” in article 5(4) of the European Convention on
Human Rights “has the same meaning as in paragraph 1” of that article, and the
question as to “whether an ‘arrest’ or ‘detention’ can be regarded as ‘lawful’ has
to be
determined in the light not only of domestic law, but also of the text of the
Convention,
the general principles embodied therein and the aim of the restrictions permitted
by
Article 5 § 1”.192 Article 5(4) thus entitles an arrested or detained person “to
bring
proceedings for the review by a court of the procedural and substantive
conditions
which are essential for the ‘lawfulness’, in the sense of” article 5(1).193 This
means that
the review must “moreover be conducted in conformity with the aim of
Article 5: to
protect the individual against arbitrariness, in particular with regard to the time
taken to
give a decision”.194
Article 5(4) further “requires that a person detained on remand must be able
to take proceedings at reasonable intervals to challenge the lawfulness of his
detention” and, “in view of the assumption under the Convention that such
detention
is to be of strictly limited duration, ... periodic review at short intervals is
called
for...”.195
Consequently, article 5(4) was violated where the person was held in pre-trial
detention for two years but could only have the legality of the continued
detention
examined once, and then without an oral hearing.196 On the other hand, it was
not
violated in a case where the applicants had chosen not to avail themselves of the
writ of
habeas corpus which existed to challenge the lawfulness of arrests and
detentions under
189I-A Court HR, Suárez Rosero Case v. Ecuador, judgment of November 12, 1997, in OAS doc.
190Ibid., paras. 64-66.
191I-A Court HR, Cesti Hurtado Case v. Peru, judgment of September 29, 1999, in OAS doc.
OEA/Ser.L/V/III.47, doc. 6, Annual Report
of the Inter-American Court of Human Rights 1999, p. 443, para. 133; for full facts see pp. 437-443.
p. 3302, para. 162.
194Eur. Court HR, Keus Case v. the Netherlands, judgment of 25 October 1990, Series A, No. 185-C, p. 66,
added.
196Ibid., p. 3303, para. 165.
the Prevention of Terrorism (Temporary Provisions) Act 1984 relating to the
situation
in Northern Ireland.197
The principle of equality of arms: According to the case-law of the
European Court, “the possibility for a prisoner ‘to be heard either in person or,
where
necessary, through some form of representation’ features in certain instances
among
the ‘fundamental guarantees of procedure applied in matters of deprivation of
liberty’”;
this is “the case in particular where the prisoner’s appearance can be regarded
as a
means of ensuring respect for equality of arms, one of the main safeguards
inherent in
judicial proceedings conducted in conformity with the Convention”.198 In order to
ensure equality of arms it may thus be “necessary to give the applicant the
opportunity
to appear at the same time as the prosecutor so that he [can] reply to his
arguments”,
and, where this has not been done, article 5(4) has been violated.199 Similarly,
article 5(4)
requires “an oral hearing in the context of an adversarial procedure involving
legal
representation and the possibility of calling and questioning witnesses” “where a
substantial term of imprisonment may be at stake and where characteristics
pertaining
to [the applicant’s] personality and level of maturity are of importance in
deciding on his
dangerousness”.200
Where the applicant’s counsel was, during the first thirty days of custody, “in
accordance with the law as judicially interpreted, unable to inspect anything in
the file,
and in particular the reports made by the investigating judge and the ... police”,
the
European Court concluded that the procedure “failed to ensure equality of arms”
and
was not, therefore, “truly adversarial”; “whereas Crown Counsel was familiar
with the
whole file, the procedure did not afford the applicant an opportunity of
challenging
appropriately the reasons relied upon to justify a remand in custody”.201
Article 5(4) “does not compel the Contracting States to set up a second level
of jurisdiction for the examination of applications for release from detention”,
but,
where this is done, the State concerned “must in principle accord to the
detainees the
same guarantees on appeal as at first instance”, thereby also guaranteeing him
or her
“truly adversarial” proceedings.202
Differentiation in procedural requirements: The requirements of article
5(4) may differ somewhat depending on the specific ground on which the person
concerned has been detained under article 5(1)(a)-(f). For instance, contrary to
decisions on deprivations of liberty taken by administrative authorities, following
which
the individual concerned “is entitled to have the lawfulness of the decision
reviewed by
a court”,203 the review required by article 5(4) “is incorporated in the decision
depriving
Lawyers 203
Series A, No. 145, pp. 34-35,
paras. 63-65.
198Eur. Court HR, Case of Kampanis v. Greece, judgment of 13 July 1995, Series A, No. 318-B, p. 45, para.
47; emphasis added.
199Ibid., p. 48, para. 58.
200Eur. Court HR, Case of Hussain v. the United Kingdom, judgment of 21 February 1996, Reports 1996-I, p.
271, paras. 59-60. Yet the
Court has also accepted that the submission of written comments would have constituted “an appropriate
means” of having the
applicant benefit from an adversarial procedure; see Eur. Court HR, Sanchez-Reisse Case v. Switzerland,
judgment of 21 October 1986, Series
A, No. 107, p. 19, para. 51; article 5(4) was violated in this case.
201Eur. Court HR, Lamy Case v. Belgium, judgment of 30 March 1989, Series A, No. 151, pp. 16-17, para.
29.
202Eur. Court HR, Case of Toth v. Austria, judgment of 12 December 1991, Series A, No. 224, p. 23, para.
84.
203Eur. Court HR, Luberti Case v. Italy, judgment of 23 February 1984, Series A, No. 75, p. 15, para. 31.
a person of his liberty when that decision is made by a court at the close of
judicial
proceedings”, for instance when a prison sentence is imposed after “conviction
by a
competent court” in accordance with article 5(1)(a) of the Convention.204
Periodic review of lawfulness of detention: As noted by the Court,
however, article 5(4) “sometimes requires the possibility of subsequent review of
the
lawfulness of detention by a court”, for instance with regard to the detention of
persons
of unsound mind within the meaning of article 5(1)(e), “where the reasons
initially
warranting confinement may cease to exist”. In the view of the Court, “it would
be
contrary to the object and purpose of Article 5 to interpret paragraph 4 thereof ...
as
making this category of confinement immune from subsequent review of
lawfulness
merely provided that the initial decision issued from a court”.205
According to the reasoning of the European Court, the same principle applies
also “to the detention ‘after conviction by a competent court’mentioned in
paragraph 1
(a), but only in certain specific circumstances”, including, for example:
_ “the placing of a recidivist at the Government’s disposal in Belgium”;
_ “the continuing detention of a person sentenced to an ‘indeterminate’ or
‘discretionary’ life sentence in Great Britain”; and
_ “the detention for security reasons of a person with an underdeveloped and
permanently impaired mental capacity in Norway”.206
In these kinds of circumstances, in particular, there must consequently exist a
possibility for persons deprived of their liberty to have the lawfulness of their
detention
reviewed by a court at regular intervals.
With regard to persons of unsound mind who are “compulsorily confined in a
psychiatric institution for an indefinite or lengthy period”, they are also “in
principle
entitled, at any rate where there is no automatic periodic review of a judicial
character,
to take proceedings at reasonable intervals before a court to put in issue the
‘lawfulness’
– within the meaning of the Convention ... – of [their] detention, whether that
detention was ordered by a civil or criminal court or by some other authority”.207
However, such review should be “wide enough to bear on those conditions
which,
according to the Convention, are essential for the ‘lawful’ detention of a person
on the
ground of unsoundness of mind, especially as the reasons capable of initially
justifying
such a detention may cease to exist”.208
204Eur. Court HR, Case of Iribarne Pérez v. France, judgment of 24 October 1995, Series A, No. 325-C, p. 63,
para. 30.
205Ibid., loc. cit.
206Ibid.
207Eur. Court HR, Case of X. v. the United Kingdom, judgment of 5 November 1981, Series A, No. 46, para.
52 at p. 23.
208Ibid., p. 25, para. 58.
Detention for reasons of mental health:
The case of X. v. the United Kingdom
In the case of X v. the United Kingdom, article 5(4) was violated since, in spite of the
habeas corpus proceedings, there was no “appropriate procedure allowing a court to
examine whether the patient’s disorder still persisted and whether the Home
Secretary was entitled to think that a continuation of the compulsory confinement
was necessary in the interests of public safety”.209 Given the Home Secretary’s
executive discretion in ordering the applicant’s return to the psychiatric hospital, the
review exercised by the domestic courts in the habeas corpus proceedings solely
concerned “the conformity of the exercise of that discretion with the empowering
statute”.210
Detention of juvenile for educational supervision:
The case of Bouamar
Where a juvenile had been deprived of his liberty and placed in remand prison for
the purpose of educational supervision, the European Court accepted that the
Juvenile Court was “undoubtedly a ‘court’ from the organisational point of view”,
albeit emphasizing “that the intervention of a single body of this kind will satisfy
Article 5 § 4 only on condition that ‘the procedure followed has a judicial character
and gives to the individual concerned guarantees appropriate to the kind of
deprivation of liberty in question’”.211 In determining whether a proceeding provides
adequate guarantees, the Court must have regard “‘to the particular nature of the
circumstances in which such proceeding takes place’”.212
While reiterating that the scope of the obligation under article 5(4) “is not identical in
all circumstances of [sic] for every kind of deprivation of liberty”, the Court held that,
nevertheless, “in a case of the present kind”, involving a minor, “it is essential not
only that the individual concerned should have the opportunity to be heard in person
but that he should also have the effective [assistance] of his lawyer”. In this case the
applicant had appeared in person in Court only once, but none of his lawyers had
attended the proceedings and, consequently, the applicant, “who was very young at
the time”, had not been afforded “the necessary safeguards”.213 Furthermore, no
remedies were available that satisfied the conditions of article 5(4), since the further
proceedings, including on appeal, suffered from the same defect and the ordinary
appeals and the appeals on points of law “had no practical effect”. Consequently,
there was a breach of article 5(4) of the Convention.214
Lawyers 205
209Ibid., loc. cit.
210Ibid., p. 24, para. 56.
212Ibid., loc. cit.
213Ibid., p. 24, para. 60.
214Ibid., pp. 24-25, paras. 61-64.
6.2 The notions of “speedily” and “without delay”

The Human Rights Committee has emphasized that, “as a matter of principle,
the adjudication of a case by any court of law should take place as expeditiously
as
possible”, although this does not mean “that precise deadlines for the handing
down of
judgements may be set which, if not observed, would necessarily justify the
conclusion
that a decision was not reached ‘without delay’”.215 On the other hand, “the
question of
whether a decision was reached without delay must be assessed on a case by
case
basis”.216 However, where the Committee did not know the reasons why there
was a
three-month delay in the rendering of the judgement concerned, it decided not
to make
a finding under article 9(4) of the Covenant.217 In the same case the Committee
was
satisfied that the review of the same author’s detention under the Extradition Act
by the
Helsinki City Court at two-week intervals satisfied the requirements of article
9(4) of
the Covenant.218
*****
According to the jurisprudence of the European Court, article 5(4) of the
European Convention entitles a detainee, after a “reasonable interval”, to take
proceedings by which the lawfulness of his or her continued detention is decided
“speedily” by a “court”219. In the view of the Court,
“the nature of detention on remand calls for short intervals; there is an
assumption in the Convention that detention on remand is to be of strictly
limited duration (Article 5 § 3), because its raison d’être is essentially related
to the requirements of an investigation which is to be conducted with
expedition”.220
In the case of Bezicheri, an interval of one month was not considered
“unreasonable”.221 With regard to the approximately five and a half months that
elapsed
from the time the applicant lodged his application until the investigating judge
dismissed it, the Court concluded that the term “speedily” had not been
complied with;
moreover, the fact that the judge allegedly had a heavy work-load at the time
was not
relevant, since “the Convention requires the Contracting States to organize their
legal
systems so as to enable the courts to comply with its various requirements”.222
215Communication No. 291/1988, M. I. Torres v. Finland (Views adopted on 2 April 1990), in UN doc. GAOR,
A/45/40 (vol. II),
p. 100, para. 7.3.
216Ibid., loc. cit.
217Ibid.
218Ibid., p. 100, para. 7.4.
219Eur. Court HR, Case of Bezicheri v. Italy, judgment of 25 October 1989, Series A, No. 164, p. 10, para. 20.
220Ibid., para. 21 at p. 11.
221Ibid., loc. cit.
222Ibid., p. 12, paras. 22-26.
The same argument was invoked, among others, in a case where
approximately two months elapsed between the institution of proceedings and
the
delivery of the judgement. Part of this delay was caused by administrative
problems due
to the vacation period. However, in addition to the above-mentioned reasoning,
the
Court also emphasized that
“it is incumbent on the judicial authorities to make the necessary
administrative arrangements, even during a vacation period, to ensure that
urgent matters are dealt with speedily and this is particularly necessary
when the individual’s personal liberty is at stake. Appropriate provisions
for this purpose do not appear to have been made in the circumstances of
the present case.”223
The five weeks that elapsed between the filing of the application for judicial
review and the additional three weeks that were required to write the judgement
did not
comply with the notion of “speedily” in article 5(4) which, consequently, had
been
violated.224
Everyone deprived of his or her liberty has the right to challenge the
lawfulness of his or her arrest or detention before a court so that the court
may decide without delay/speedily on the lawfulness of the
detention or order the person’s release if the detention is not lawful.
This right applies to all forms of deprivation of liberty, including
administrative detention.
This judicial remedy must be effectively available to the detainee.
Incommunicado detention is not a valid ground for refusing a
detainee the right to challenge the lawfulness of his or her detention
before
a court of law.
The legality of the detention must be determined by a court which is
independent and impartial. Appeals to government ministers do
not constitute a sufficient remedy for the purposes of challenging the
lawfulness of deprivations of liberty.
The court must have the power to review both the procedural and
substantive grounds for the deprivation of liberty and be empowered to
make a binding order for release of the detained person in the event that
his or her deprivation of liberty is unlawful.
Every person deprived of his or her liberty is entitled to have the
lawfulness of the continued detention subjected to periodic reviews
for the purpose of testing whether the reasons for the deprivation of
liberty
remain valid; the exception to this rule is detention pursuant to a
criminal conviction by a competent court.
Lawyers 207
223Eur. Court HR, Case of E. v. Norway, judgment of 29 August 1990, Series A, No. 181, p. 28, para. 66.
224Ibid., p. 28, paras. 65-67.
The detained person must be allowed access to a lawyer and to appear in
court to argue his or her case on equal terms with the prosecuting or other
authorities; this right also implies that the detained person must have
access to all relevant information concerning his or her case (equality of
arms).
The court must act without delay/speedily, that is, as
expeditiously as possible. What is considered to be “without delay” or
“speedily” depends on the circumstances of each case. A delay must not
be
unreasonable and a lack of resources or vacation periods are not
acceptable justifications for delay.
7. The Right of Access to and
Assistance of a Lawyer
As provided in Principle 11(1) of the Body of Principles for the Protection of
All Persons under any Form of Detention or Imprisonment, “a detained person
shall
have the right to defend himself or to be assisted by counsel as prescribed by
law”. This
right is, of course, a corollary to the principle of equality of arms that was
previously
dealt with in connection with article 5(4) of the European Convention on Human
Rights.
*****
Where the complainant had not had access to legal representation from
December 1984 to March 1985, the Human Rights Committee concluded that
there
was a violation of article 9(4) of the Covenant “since he was not in due time
afforded
the opportunity to obtain, on his own initiative, a decision by a court on the
lawfulness
of his detention”.225 The same provision was violated in a case where the author
had
had no access to legal representation for two and a half months.226 The lack of
access to
a lawyer, whether counsel of his own choice or a public defender, was also an
element in
the Committee’s decision to conclude that there had been a violation of article
9(3) in
the case of Wolf, since the author had not been brought promptly before a judge
or
other judicial officer authorized by law to exercise judicial power.227
225Communication No. 248/1987, G. Campbell v. Jamaica (Views adopted on 30 March 1992), in UN doc.
GAOR, A/47/40,
p. 246, para. 6.4.
A/49/40 (vol. II),
p. 26, para. 11.1.
227Communication No. 289/1988, D. Wolf v. Panama (Views adopted on 26 March 1992), in UN doc. GAOR,
A/47/40, p. 289,
para. 6.2.
However, alleged denial of access to a lawyer during detention, for instance,
must be substantiated. Where the author did not show that he had ever
requested legal
representation during the first year of his detention and that his request was
refused,
and where he did not claim that he had no legal representation during the
preliminary
hearing, the Committee rejected the claim as inadmissible.228
The right to legal assistance will be dealt with in further depth in Chapter 6
regarding The Right to a Fair Trial: Part I – From Investigation to Trial.
A detained person has the right to consult with, and be assisted by, a
lawyer in connection with the proceedings taken to test the legality of her
or his detention.
8. The Right to Compensation
in the Event of Unlawful
Deprivation of Liberty
provides that “anyone who has been the victim of unlawful arrest or detention
shall
have an enforceable right to compensation”, and this provision is applicable to
all
unlawful or arbitrary arrests and detentions.229 Article 5(5) of the European
Convention
provides that “everyone who has been the victim of arrest or detention in
contravention of the provisions of this article shall have an enforceable right to
compensation”.
*****
In the case of Monja Jaona, where the author had been subjected to arbitrary
arrest and detention contrary to article 9(1) of the Covenant, the Committee
underlined
expressis verbis that the State party was “under an obligation to take effective
measures to
remedy the violations which Monja Jaona [had] suffered, to grant him
compensation
under article 9, paragraph 5, ... on account of his arbitrary arrest and detention,
and to
take steps to ensure that similar violations do not occur in the future”.230
*****
Lawyers 209
228Communication No. 732/1997, B. Whyte v. Jamaica (Views adopted on 27th July 1998), in UN doc. GAOR,
A/53/40 (vol. II),
p. 200, para. 7.4.
229See General Comment No. 8 (16) in UN doc. GAOR, A/37/40, p. 95, para. 1 and p. 96, para. 4.
230Communication No. 132/1982, Monja Jaona v. Madagascar (Views adopted on 1 April 1985), in UN doc.
GAOR, A/40/40,
p. 186, para. 16.
Article 5(5) of the European Convention
“is complied with where it is possible to apply for compensation in respect
of a deprivaton of liberty effected in conditions contrary to paragraphs 1, 2,
3 and 4. It does not prohibit the Contracting States from making the award
of compensation dependent upon the ability of the person concerned to
show damage resulting from the breach. In the context of Article 5 § 5, ...
the status of ‘victim’ may exist even where there is no damage, but there
can be no question of ‘compensation’ where there is no pecuniary or
non-pecuniary damage to compensate.”231
However, where the applicants have been arrested and detained lawfully
under domestic law but in violation of article 5 of the Convention, there has been
a
violation of article 5(5) if they had no enforceable claim for compensation before
the
domestic courts.232
Everyone has the right to compensation for unlawful deprivation of liberty
by reason of violations of international and/or national law. Such
compensation may depend on the demonstration of damage.
9. Incommunicado detention
The treatment of persons deprived of their liberty will be covered in Chapter
8, including such issues as the right of access to family and questions of solitary
confinement. However, in the present context, one particular issue deserves
highlighting, namely that of incommunicado detention. The practice of holding
detainees
incommunicado, that is to say, keeping them totally isolated from the outside
world
without even allowing them access to their family and lawyer, does not per se
appear to
be outlawed by international human rights law, although the Human Rights
Committee
has stated in its General Comment No. 20, on article 7 of the Covenant, that
“provisions should ... be made against incommunicado detention”.233
What is clear from the jurisprudence, however, is that incommunicado detention
is not allowed to interfere with the effective enforcement of the legal guarantees
of
people deprived of their liberty. In a case where the authors had been held
incommunicado
during the first 44 days of detention, the Committee concluded that both articles
9(3)
and 10(1) of the Covenant had been violated because they had not been brought
promptly before a judge and because of the incommunicado detention.234
231Eur. Court HR, Wassink Case v. the Netherlands, judgment of 27 September 1990, Series A, No. 185-A, p.
14, para.38.
Series A, No. 145-B, p. 35,
paras. 66-67.
233See United Nations Compilation of General Comments, p. 139 at p. 140, para. 11.
234Communication No. 176/1984, L. Peñarrieta et al. v. Bolivia (Views adopted on 2 November 1987), in UN
doc. GAOR,
A/43/40, p. 207, para. 16.
In view of the fact that people arrested and detained are at particular
risk of being subjected to torture or other ill-treatment, and even of
being made to
disappear and killed in the first hours and days following their
deprivation of
liberty, the question arises whether it should ever be lawful to permit
incommunicado detention.
Brief incommunicado detention, that is, deprivation of liberty for a
short period of time in complete isolation from the outside world,
including family and lawyer, does not per se appear to be illegal under
international human rights law, but it cannot be used in order to bar the
detainee from exercising his or her rights as an arrested or detained
person.
This chapter has provided an account of the basic international legal rules that
regulate States’ power to resort to arrests and detentions and the legal
guarantees that
exist aimed at preventing unlawful and arbitrary deprivations of liberty. At the
general
level, adherence to these rules is a sine qua non in a democratic society
governed by the
rule of law, and, at the individual level, compliance therewith is an indispensable
condition for ensuring respect for the rights and freedoms of the individual
human
being, including, in particular, respect for his or her physical and mental
integrity. By
effectively guaranteeing everyone’s right to personal liberty and security at all
times,
States will also be promoting their own internal security, without which human
rights
cannot be enjoyed to the full.
Lawyers 211
.........Chapter 6
THE RIGHT TO A FAIR
TRIAL: PART I – FROM
INVESTIGATION TO TRIAL....
Learning Objectives
_ To familiarize course participants with some of the principal international
legal rules
concerning the individual rights that must be secured during criminal
investigations
and the application of these rules by the international monitoring organs;
_ To sensitize participants to the importance of applying these legal rules
in order to
protect a broad range of human rights in a society based on the rule of
law;
_ To create an awareness among the participating judges, prosecutors and
lawyers of
their primordial role in enforcement of the rule of law, including individual
rights
during criminal investigations;
_ To create an awareness of the fact that enforcement of the fair trial rules
is not only
conducive to enhancing the protection of human rights largo sensu, but
also conducive
to encouraging economic investment and promoting national and
international peace
and security.
Questions
_ Are you already conversant with the international legal rules and
jurisprudence
relating to criminal investigations?
_ Do they perhaps even form part of the national legal system within which
you work?
_ If so, what is their legal status and have you ever been able to apply
them?
_ In the light of your experience, do you have any particular concerns – or
have you
experienced any specific problems – when ensuring a person’s human
rights at the
pre-trial stage?
_ If so, what were these concerns or problems and how did you address
them, given the
legal framework within which you are working?
_ Which issues would you like to have specifically addressed by the
facilitators/trainers
during this course?
Lawyers 213
_ The Universal Declaration of Human Rights, 1948
_ The Convention against Torture and Other Cruel, Inhuman or
_ The Statute of the International Criminal Court, 1998
*****
_ The Code of Conduct for Law Enforcement Officials, 1979
_ The Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment, 1988
_ The Standard Minimum Rules for the Treatment of Prisoners, 1955
_ The Guidelines on the Role of Prosecutors, 1990
_ The Basic Principles on the Role of Lawyers, 1990
_ The Rules of Procedure of the International Criminal Tribunals for the
former Yugoslavia and Rwanda
Chapter 6 • The Right to a Fair Trial: Part I – From Investigation to Trial
1. Introduction
The present chapter will first deal with the overarching principle of equality
before the law, which conditions both civil and criminal proceedings from the
outset,
as well as with the principle of presumption of innocence, which is of
fundamental
importance in relation to criminal proceedings. These notions are thus of equal
relevance for Chapter 7, but will not be recapitulated in that context. This
chapter will
then specifically examine some of the human rights that belong to the stage of
criminal
investigations, up to the beginning of the trial itself, where applicable. It should
be
noted, however, that the question of administration of juvenile justice will be
dealt with
specifically in Chapter 10.
It must be emphasized that this chapter does not provide an exhaustive list of
rights to be guaranteed at the pre-trial stage, but merely focuses on some
human rights
that are considered to be of particular importance in connection with criminal
investigations.1 Some of these rights are also essential at the trial stage and will
again be
examined in Chapter 7. The selection of issues to be dealt with in this rather than
the
next chapter has been made from a practical point of view, bearing in mind the
sequence of events normally occurring in connection with the investigation into
criminal activities, and the possible ensuing trial to determine guilt. As the rights
enjoyed at the pre-trial and the trial stages are closely interrelated, some
overlapping is
unavoidable, but has, as far as is possible, been reduced to a minimum.
2. The Effective Protection of the
Right to a Fair Trial:
A Global Challenge
Every person has the right to a fair trial both in civil and in criminal cases, and
the effective protection of all human rights very much depends on the practical
availability at all times of access to competent, independent and impartial courts
of law
which can, and will, administer justice fairly. Add to this the professions of
prosecutors
and lawyers, each of whom, in his or her own field of competence, is
instrumental in
making the right to a fair trial a reality, and we have the legal pillar of a
democratic
society respectful of the rule of law.
Lawyers 215
1For an important collection of rules relating to all stages of the investigation and trial, see Amnesty
International Fair Trials Manual,
London, 1998, 187 pp.
However, an independent and impartial Judiciary capable of ensuring fair trial
proceedings is not only of importance to the rights and interests of human
beings, but is
likewise essential to other legal persons, including economic entities, whether
smaller
enterprises or large corporations, which often depend on courts of law, inter alia,
to
regulate disputes of various kinds. For instance, domestic and foreign enterprises
will
be reluctant to invest in countries where the courts are not perceived as
administering
justice impartially. Furthermore, it is beyond doubt that in countries where
aggrieved
persons or other legal entities can have free access to the courts in order to
claim their
rights, social tension can more easily be managed and the temptation to take
the law
into one’s own hands is more remote. By contributing in this way to defusing
social
tensions, the courts of law will contribute to enhancing security not only at the
national
but also at the international level, since internal tensions often have a dangerous
spillover effect across borders.
Yet a glance at the jurisprudence of the international monitoring organs
makes it clear that the right to a fair trial is frequently violated in all parts of the
world.
Indeed, the vast majority of cases dealt with by the Human Rights Committee
under the
Optional Protocol, for instance, concern alleged violations of pre-trial or trial
rights. In
what follows, a brief survey of the most relevant aspects of the international
jurisprudence will accompany the description of the relevant legal rules.
3. The Legal Texts
The key legal texts on fair trial are to be found in article 14 of the International
Covenant on Civil and Political Rights, article 7 of the African Charter on Human
and
Peoples’ Rights, article 8 of the American Convention on Human Rights, and
article 6
of the European Convention on Human Rights. The relevant provisions of these
articles will be dealt with below under the appropriate headings, while the
complete
texts will be distributed as handouts.
Additional rules to which reference will be made below are inter alia contained
in the following United Nations instruments: the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment; the Universal
Declaration of Human Rights; the Code of Conduct for Law Enforcement Officials;
Detention
or Imprisonment; the Standard Minimum Rules for the Treatment of Prisoners;
the
Guidelines on the Role of Prosecutors and the Basic Principles on the Role of
Lawyers;
the Rules of Procedure of the International Criminal Tribunals for the former
Yugoslavia and Rwanda; and the Statute of the International Criminal Court.
4. The Right to Equality before the

Law and Equal Treatment
by the Law
The right to equality before the law and equal treatment by the law, or, in other
words, the principle of non-discrimination, conditions the interpretation and
application not only of human rights law stricto sensu, but also of international
humanitarian law.2 According to article 26 of the International Covenant on Civil
and
Political Rights, for instance, “all persons are equal before the law and are
entitled
without any discrimination to the equal protection of the law”. Similar provisions
are
contained in article 3 of the African Charter on Human and Peoples’ Rights and
article
24 of the American Convention on Human Rights. Further, article 20(1) of the
Statute
of the International Criminal Tribunal for Rwanda and article 21(1) of the Statute
of the
International Criminal Tribunal for the former Yugoslavia provide that “all
persons
shall be equal before” these Tribunals.
On the other hand, the principle of equality or the prohibition of
discrimination does not mean that all distinctions are forbidden, and in this
respect the
Human Rights Committee has held that differential treatment between people or
groups of people “must be based on reasonable and objective criteria”.3
However,
further details as to the interpretation of the principle of equality and the
prohibition of
discrimination will be provided in Chapter 13 below.
The specific right to equality before the courts is a fundamental principle
underlying the right to a fair trial, and can be found expressis verbis in article
14(1) of the
International Covenant on Civil and Political Rights, according to which “all
persons
shall be equal before the courts and tribunals”.4 Although not contained in the
corresponding articles on fair trial in the regional conventions, the right to
equality
before the courts is comprised by the general principle of equality protected
thereby.
Lawyers 217
2See e.g. articles 1, 2 and 7 of the Universal Declaration of Human Rights; articles 2(1), (3), 4(1) and 26 of
the International
Covenant on Civil and Political Rights; article 2(2) of the International Covenant on Economic, Social and
Cultural Rights; articles 2,
3, 18(3) and 28 of the African Charter on Human and Peoples’ Rights; articles 1, 24 and 27(1) of the
American Convention on
Human Rights; article 14 of the European Convention on Human Rights; articles 2 and 15 of the 1979
Convention on the
Elimination of All Forms of Discrimination against Women; article 2 of the 1989 Convention on the Rights of
the Child; and the
1966 International Convention on the Elimination of All Forms of Racial Discrimination. Of the four 1949
Geneva Conventions, see
e.g. articles 3 and 27 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War;
articles 9(1) and 75(1)
of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of
International Armed Conflicts (Protocol I); and articles 2(1) and 4(1) of the 1977 Protocol Additional to the
Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).
3Communication No. 694/1996, Waldman v. Canada (Views adopted on 3 November 1999), in UN doc.
GAOR, A/55/40
(vol. II), pp. 97-98, para. 10.6.
4See also article 5(a) of the 1966 International Convention on the Elimination of All Forms of Racial
Discrimination, which
provides for “the right to equal treatment before the tribunals and all other organs administering justice”;
article 21(1) of the Statute
of the International Criminal Tribunal for the former Yugoslavia, according to which “all persons shall be
equal before the
International Tribunal”; article 21(1)of the Statute of the International Criminal Tribunal for Rwanda; and
article 67(1) of the Statute
of the International Criminal Court.
The principle of equality before the courts means in the first place that,
regardless of one’s gender, race, origin or financial status, for instance, every
person
appearing before a court has the right not to be discriminated against
either in
the course of the proceedings or in the way the law is applied to the
person
concerned. Further, whether individuals are suspected of a minor offence or a
serious
crime, the rights have to be equally secured to everyone. Secondly, the
principle of
equality means that all persons must have equal access to the courts.
Equal access to courts: The Oló Bahamonde case
The principle of equality was to the fore in the case of Oló Bahamonde examined under
article 14(1) of the International Covenant on Civil and Political Rights, where the
author complained that he had unsuccessfully tried to obtain redress before the
domestic courts for the alleged persecution to which he was subjected by
governmental authorities. The Committee observed in this respect
“... that the notion of equality before the courts and tribunals encompasses
the very access to the courts, and that a situation in which an individual’s
attempts to seize the competent jurisdictions of his/her grievances are
systematically frustrated runs counter to the guarantees of article 14,
paragraph 1”.5
Equal access to courts by women: Another essential aspect of the right to
equality is that women must have equal access to courts in order to be
able
effectively to claim their rights. Two important cases illustrate this basic rule
well. In
the first, where a women was not entitled to sue the tenants of two apartment
buildings
that she owned, the Human Rights Committee found that there was a violation of
articles 3, 14(1) and 26 of the Covenant. According to the Peruvian Civil Code
only the
husband, not the married woman, was entitled to represent matrimonial property
before the courts, a state of affairs that is contrary to international human rights
law.6 In
the second, where prohibitive costs of litigation prevented a woman from gaining
access to a court in order to request a judicial separation from her husband, and
where
there was no legal aid available for these complex proceedings, the European
Court of
Human Rights found a violation of article 6(1) of the European Convention.7
While women’s right of access to the courts will be dealt with more fully in
Chapter 11 below, these examples show the breadth of the protection afforded
by the
principle of equality.
5Communication No. 468/1991, A. N. Oló Bahamonde v. Equatorial Guinea (Views adopted on 20 October
1993), UN doc. GAOR,
A/49/40 (vol. II), p. 187, para. 9.4.
6Communication No. 202/1986, G. Ato del Avellanal v. Peru (Views adopted on 28 October 1988), UN doc.
GAOR, A/44/40,
pp. 198-199, paras. 10.1-12.
7Eur. Court HR, Airey Case v. Ireland, judgment of 9 October 1979, Series A, No. 32, pp. 11-16, paras. 20-28.
The principle of equality must be guaranteed throughout the pre-trial and
trial stages, in that every suspected or accused person has the right not to
be discriminated against in the way the investigations or trials are
conducted or in the way the law is applied to them.
The principle of equality also means that every human being must have
equal access to the courts in order to claim their rights. In particular,
women must have access to courts on an equal footing with men, in order
to be able to claim their rights effectively.
5. The Right to be Presumed
Innocent: the Overall
Guarantee from Suspicion to
Conviction or Acquittal
The right to be presumed innocent until proved guilty is another principle that
conditions the treatment to which an accused person is subjected throughout the
period of criminal investigations and trial proceedings, up to and including the
end of
the final appeal. Article 14(2) of the International Covenant on Civil and Political
Rights provides that “everyone charged with a criminal offence shall have the
right to
be presumed innocent until proved guilty according to law”. Article 7(1)(b) of the
African Charter on Human and Peoples’ Rights, article 8(2) of the American
Convention on Human Rights and article 6(2) of the European Convention on
Human
Rights all also guarantee the right to presumption of innocence, and article 11(1)
of the
Universal Declaration of Human Rights safeguards the same right for everyone
“charged with a penal offence ... until proved guilty according to law in a public
trial at
which he has had all the guarantees necessary for his defence”. More recently,
the
principle of presumption of innocence has in particular been included in article
20(3) of
the Statute of the International Criminal Tribunal for Rwanda, article 21(3) of the
Statute of the International Criminal Tribunal for the former Yugoslavia, and in
article
66(1) of the Statute of the International Criminal Court.
*****
As noted by the Human Rights Committee in General Comment No. 13, the
principle of presumption of innocence means that
“the burden of proof of the charge is on the prosecution and the accused
has the benefit of doubt. No guilt can be presumed until the charge has
been proved beyond reasonable doubt. Further, the presumption of
innocence implies a right to be treated in accordance with this principle. It
is, therefore, a duty for all public authorities to refrain from prejudging the
outcome of a trial”.8
Lawyers 219
8General Comment No. 13 (Article 14), in UN Compilation of General Comments, p. 124, para. 7.
Adverse public comments by authorities: In the case of Gridin, the
authorities failed to exercise the restraint that article 14(2) of the International
Covenant requires in order to preserve the accused person’s presumption of
innocence.
The author had inter alia alleged that high-ranking law enforcement officials had
made
public statements portraying him as guilty of rapes and murders and that these
statements had been given wide media coverage. The Committee noted that the
Supreme Court had “referred to this issue, but failed to specifically deal with it
when it
heard the author’s appeal”.9 Consequently, there was a violation of article 14(2)
in this
case.
Anonymous judges: The right to be presumed innocent guaranteed in article
14(2) of the Covenant was also violated in the case of Polay Campos, where the
victim
was tried by a special tribunal of “faceless judges” who were anonymous and did
not
constitute an independent and impartial court.10
Change of venue: The right to be presumed innocent as guaranteed by article
14(2) of the International Covenant was not violated in a case where the author
had
complained that the trial judge’s refusal to change its venue deprived him of his
right to
a fair trial and his right to be presumed innocent. The Committee noted that his
request
had been “examined in detail by the judge at the start of the trial” and that the
judge had
pointed out “that the author’s fears related to expressions of hostility towards
him
which well preceded the trial, and that the author was the only one, out of five
co-accused, to have requested a change in venue”.11 She then listened to the
parties’
submissions, “satisfied herself that the jurors had been selected properly”, and
thereafter “exercised her discretion and allowed the trial to proceed” without
changing
the venue.12 In these circumstances the Committee did not consider that the
decision
not to change the venue violated the author’s right to a fair trial or the right to
presumption of innocence. It held, in particular, that “an element of discretion is
necessary in decisions such as the judge’s on the venue issue, and barring any
evidence
of arbitrariness or manifest inequity of the decision”, it was “not in a position to
substitute its findings for those of the trial judge”.13
*****
“The right to be presumed innocent until proved guilty by a competent court
or tribunal” under article 7(1)(b) of the African Charter on Human and Peoples’
Rights
was violated in a case where leading representatives of the Nigerian Government
had
pronounced the accused persons guilty of crimes during various press
conferences as
well as before the United Nations. The accused were subsequently all convicted
and
9Communication No. 770/1997, Gridin v. Russian Federation (Views adopted on 20 July 2000), UN doc.
p. 176, para. 8.3.
10Communication No. 577/1994, R. Espinosa de Polay v. Peru (Views adopted on 6 November 1997), UN
doc. GAOR, A/53/40
(vol. II), p. 43, para. 8.8.
11Communication No. 591/1994, I. Chung v. Jamaica (Views adopted on 9 April 1998), UN doc. GAOR,
A/53/40 (vol. II), p. 61,
para. 8.3.
12Ibid., loc. cit.
13Ibid.
executed following a trial before a court that was not independent as required by
article
26 of the Charter.14
*****
The right to presumption of innocence in article 6(2) of the European
Convention on Human Rights has been held to constitute “one of the elements of
a fair
criminal trial that is required by paragraph 1” of that article, and is a right which,
like
other rights contained in the Convention, “must be interpreted in such a
way as to
guarantee rights which are practical and effective as opposed to
theoretical and
illusory”.15
The presumption of innocence will thus be violated, for instance, “if a judicial
decision concerning a person charged with a criminal offence reflects an opinion
that
he is guilty before he has been proved guilty according to law”, and it is
sufficient, “even
in the absence of any formal finding, that there is some reasoning suggesting
that the
court regards the accused as guilty”.16
Adverse public comments by authorities:
The case of Allenet de Ribemont
The “presumption of innocence may be infringed not only by a judge or court but
also by other public authorities”.17 In the case of Allenet de Ribemont, the applicant had
just been arrested by the police, when a press conference was held implicating him in
the murder of a French Member of Parliament. The press conference, which in
principle concerned the French police budget for the coming years, was attended by
the Minister of the Interior, the Director of the Paris Criminal Investigation
Department, and the Head of the Crime Squad. The applicant himself had at this
stage not yet been charged with any crime. The European Court found a violation of
article 6(2) in this case, noting that “some of the highest-ranking officers in the
French police referred to Mr Allenet de Ribemont, without any qualification or
reservation, as one of the instigators of a murder and thus an accomplice in that
murder”. In the view of the Court this “was clearly a declaration of the applicant’s
guilt which, firstly, encouraged the public to believe him guilty and, secondly,
prejudged the assessment of the facts by the competent judicial authority”.18
Lawyers 221
14ACHPR, International Pen and Others (on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisations) v.
Nigeria, Communications Nos.
137/94, 139/94, 154/96 and 161/97, decision adopted on 31 October 1998, paras. 94-96 of the text of the
decision as published at the
following web site: http://www1.umn.edu/humanrts/africa/comcases/137-94_139-94_154-96_161-97.html.
15Eur. Court HR, Case of Allenet de Ribemont v. France, judgment of 10 February 1995, Series A, No. 308, p.
16, para. 35; emphasis added.
16Ibid., loc. cit.
17Ibid., p. 16, para. 36.
18Ibid., p. 17, para. 41.
Assessment of costs and the implication of guilt: The European Court has
held that article 6(2) “does not confer on a person ‘charged with a criminal
offence’ a
right to reimbursement of his legal costs where proceedings taken against him
are
discontinued”, but that a decision to refuse ordering the reimbursement to the
former
accused of his necessary costs and expenses following the discontinuation of
criminal
proceedings against him “may raise an issue under article 6 § 2 if supporting
reasoning,
which cannot be dissociated from the operative provisions, amounts in substance
to a
determination of the guilt of the former accused without his having previously
been
proved guilty according to law and, in particular, without his having had an
opportunity
to exercise the rights of the defence”.19
The Court thus found a violation of article 6(2) of the European Convention
in the Minelli case, where the Chamber of the Assize Court of the Canton of
Zürich, in
deciding the costs occasioned by a private prosecution, had concluded that, in
the
absence of statutory limitation, the applicant would “very probably” have been
convicted of defamation on the basis of a published article which contained
accusations
of fraud against a particular company.20 In the view of the European Court, “the
Chamber of the Assize Court showed that it was satisfied of the guilt of” the
applicant,
who “had not had the benefit of the guarantees contained in” article 6(1) and
(3); the
Chamber’s appraisals were thus “incompatible with respect for the presumption
of
innocence”.21 It did not help in this respect that the Federal Court had “added
certain
nuances” to the aforementioned decision, since it was “confined to clarifying the
reasons for that decision, without altering their meaning or scope”. By rejecting
the
applicant’s appeal, the Federal Court confirmed the decision of the Chamber in
law and
simultaneously “approved the substance of the decision on the essential
points”.22
The outcome was however different in the case of Leutscher, where the
applicant had been convicted in absentia of several counts of tax offences but
where, on
appeal, the prosecution was considered time-barred by the Court. In response to
the
applicant’s request for reimbursement of various costs and fees, the Court of
Appeal
noted with regard to the counsel’s fees that there was nothing in the file that
gave “any
cause to doubt that this conviction was correct”.23 However, the European Court
of
Human Rights concluded that article 6(2) had not been violated by these facts:
the
Court of Appeal had a “wide measure of discretion” to decide, on the basis of
equity,
whether the applicant’s costs should be paid out of public funds, and, in doing
so, it was
“entitled to take into account the suspicion which still weighed against the
applicant as a
result of the fact that his conviction had been quashed on appeal only because
the
prosecution was found to have been time-barred when the case was brought to
trial”.24
In the view of the Court, the disputed statement could not be construed as a
reassessment of the applicant’s guilt.25
19Eur. Court HR, Case of Leutscher v. the Netherlands, judgment of 26 March 1996, Reports 1996-II, p. 436,
para. 29.
20Eur. Court HR, Minelli Case v. Switzerland, judgment of 25 March 1983, Series A, No. 62, p. 18, para. 38.
21Ibid., loc. cit.
22Ibid., p. 19, para. 40.
23Ibid., p. 432, para. 14.
24Ibid., p. 436, para. 31.
25Ibid., loc. cit.
The right to be presumed innocent until proved guilty conditions both the
stage of criminal investigations and the trial proceedings; it is for the
prosecuting authorities to prove beyond reasonable doubt that an accused
person is guilty of the offence. Adverse public statements by officials may
compromise the presumption of innocence.
6. Human Rights during Criminal
Investigations
Even in the course of a criminal investigation, the persons affected thereby
continue to enjoy their fundamental rights and freedoms, albeit with some
limitations
inherent in the deprivation of liberty for those affected by the measure. While
some
rights, such as the right to freedom from torture, are, as will be seen below, valid
for
everyone at all times, the right to respect for one’s private and family life may,
however,
increasingly be jeopardized, for instance through sophisticated means of wire
tapping.
Some examples from the international jurisprudence will illustrate this problem.
It
should again be recalled that this section will not provide an exhaustive account
of the
rights guaranteed during criminal investigations, but will focus only on some of
the
basic rights which must be protected at this important stage.
6.1 The right to respect for one’s private life,
home and correspondence
The right to respect for one’s privacy, family, home and correspondence is
guaranteed, albeit in different terms, by article 17 of the International Covenant
on
Civil and Political Rights, article 11 of the American Convention on Human Rights
and
article 8 of the European Convention on Human Rights. Limitations on its
exercise
may however be imposed in certain circumstances. Article 17(1) of the
International
Covenant thus provides that “no one shall be subjected to arbitrary or unlawful
interference with his privacy, family, home or correspondence, nor to unlawful
attacks
on his honour and reputation”; while article 11 of the American Convention is
similarly
worded, opening, however, with the words: “no one may be the object of
arbitrary and
abusive interference with ...”. According to article 8 of the European Convention,
“there shall be no interference by a public authority with the exercise of” the
right to
respect for one’s private and family life, home or correspondence
“... except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the
economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others”.
Lawyers 223
The problems associated with the right to privacy will be examined in relation
to wire tapping, searches and interference with correspondence, which
are
measures that are usually resorted to at an early stage of judicial investigations
in order
to prove suspicions of criminal activity, and which may or may not subsequently
lead to
the bringing of formal charges.
6.1.1 Wire tapping
While neither the Human Rights Committee nor the Inter-American Court of
Human Rights has as yet dealt with the question of interception of telephone
conversations for the purpose of judicial investigation into crime, this issue has
been to
the fore in several cases dealt with by the European Court of Human Rights. The
European Court has consistently held that such telephone tapping amounts to
“an
interference by a public authority” with the applicant’s right to respect for his or
her
correspondence and private life as guaranteed by article 8 of the European
Convention,
an interference which, in order to be justified, must, as seen above, be “in
accordance
with the law”, pursue one or more of the legitimate aims referred to in article
8(2), and
lastly, must also be “necessary in a democratic society” for one or more of these
legitimate aims.26
Without examining in detail the Court’s jurisprudence regarding the notion of
“in accordance with the law”, it is sufficient in this context to point out that
recourse to
telephone tapping must have a basis in domestic law, a law which must not only
be
“accessible” but also “foreseeable” as to “the meaning and nature of the
applicable
measures”.27 In other words, article 8(2) “does not merely refer back to domestic
law
but also relates to the quality of the law, requiring it to be compatible with the
rule of
law”.28 This means, in particular, “that there must be a measure of legal
protection in
domestic law against arbitrary interferences by public authorities with the rights
safeguarded by” article 8(1), because, especially “where a power of the
executive is
exercised in secret, the risks of arbitrariness are evident”.29 Although “the
requirement
of foreseeability cannot mean that an individual should be enabled to foresee
when the
authorities are likely to intercept his communications so that he can adapt his
conduct
accordingly”, the law must nevertheless
“be sufficiently clear in its terms to give citizens an adequate indication as
to the circumstances in which and the conditions on which public
authorities are empowered to resort to this secret and potentially
dangerous interference with the right to respect for private life and
correspondence”.30
26See e.g. Eur. Court HR, Huvig Case v. France, judgment of 24 April 1990, Series A, No. 176-B, p. 52, para.
25.
27Ibid., pp. 52-55, paras. 26-29; emphasis added.
29See e.g. Eur. Court HR, Malone Case v. the United Kingdom, judgment of 2 August 1984, Series A, No. 82,
p. 32, para. 67.
30Ibid., loc. cit.
The requirement of legal protection implies, in other words, that domestic law
must provide adequate legal safeguards against abuse and that, for instance,
where the
law confers a power of discretion on the authorities concerned, the law must also
“indicate the scope of that discretion”.31
The Huvig case
In the Huvig case the applicants had been subjected to telephone tapping for about
two days by the judge investigating charges of tax evasion and false accounting. The
European Court accepted that the disputed measures had a legal basis in French law,
namely the Code of Criminal Procedure, as interpreted by the French courts, and,
furthermore, that the law was accessible. However, in terms of the quality of the law
the Court concluded that it did “not indicate with reasonable clarity the scope and
manner of exercise of the relevant discretion conferred on the public authorities”;
consequently, the applicants “did not enjoy the minimum degree of protection to
which citizens are entitled under the rule of law in a democratic society”.32 In other
words, the legal system did not “afford adequate safeguards against various possible
abuses” in that, for instance, “the categories of people liable to have their telephones
tapped by judicial order and the nature of the offences which may give rise to such an
order” were “nowhere defined”, and there was nothing obliging a judge “to set a time
limit on the duration of telephone tapping”.33 Further, the law did not specify “the
circumstances in which recordings may or must be erased or the tapes be destroyed,
in particular where an accused has been discharged by an investigating judge or
acquitted by a court”.34 It followed that, since the applicants had not enjoyed the
minimum degree of protection required under the rule of law in a democratic society,
there had been a breach of article 8 in this case.
The European Court has also found breaches of article 8 in other similar
cases such as the Kruslin and Malone cases, judgments which, as in the Huvig
case, were
founded on the basis that the practices in question did not comply with the
requirements flowing from the expression “in accordance with the law” in article
8(2)
of the Convention.35
Lawyers 225
32Eur. Court HR, Huvig Case v. France, judgment of 24 April 1990, Series A, No. 176-B, p. 56-57, para. 35.
33Ibid., p. 56, para. 34.
34Ibid., loc. cit.
35Eur. Court HR, Malone Case v. the United Kingdom, judgment of 2 August 1984, Series A, No. 82, and Eur.
Court HR, Kruslin Case v.
France, judgment of 24 April 1990, Series A, No. 176-A. In the case of Klass and Others, however, the Court
found no breach of article 8:
see Eur. Court HR, Case of Klass and Others, judgment of 6 September 1976, Series A, No. 28.
The Lampert case
It can be seen from a reading of the judgment in the more recent case of Lampert that
in 1991 France adopted an amendment to the Code of Criminal Procedure
concerning the confidentiality of telecommunications messages, which laid down
“clear, detailed rules” and specified “with sufficient clarity the scope and manner of
exercise of the relevant discretion conferred on the public authorities”.36 Yet article 8
was also violated in this case on the basis that the applicant “did not enjoy the
effective protection of national law, which does not make any distinction according
to whose line is being tapped”.37
What had happened in this case was that the applicant was charged with handling the
proceeds of aggravated theft after some of his conversations had been intercepted as
he called another person whose telephone was being tapped. The applicant’s lawyer
appealed against two extensions of the duration of the telephone tapping, but on
appeal the Court of Cassation ruled, in particular, “that the applicant had ‘no locus
standi to challenge the manner in which the duration of the monitoring of a third party’s
telephone line was extended’”.38 The European Court accepted that the interference
with the applicant’s right to respect for his privacy and correspondence “was
designed to establish the truth in connection with criminal proceedings and therefore
to prevent disorder”.39 However, the fact that the Court of Cassation had refused the
applicant locus standi to challenge the extension of the duration of the wire tapping
could, in the view of the European Court, “lead to decisions whereby a very large
number of people are deprived of the protection of the law, namely all those who
have conversations on a telephone line other than their own”; that “would in practice
render the protective machinery largely devoid of substance”. It followed that the
applicant had not had “available to him the ‘effective control’ to which citizens are
entitled under the rule of law and which would have been capable of restricting the
interference in question to what was ‘necessary in a democratic society’”.40
While there is always a danger in extrapolating from the European
jurisprudence, it would seem reasonable to conclude that under the International
Covenant too, as well as the American Convention, the right of the judicial
authorities
to resort to interception of telephone conversations will be relatively strictly
interpreted
in favour of the right to respect for one’s privacy, and that, as a minimum, such
interference in the exercise of this right must be clearly based in the domestic
law,
imposed for a specific and legitimate purpose, and be accompanied by adequate
safeguards and remedies for the persons whose telephone is tapped.
36Eur. Court HR, Case of Lampert v. France, judgment of 24 August 1998, Reports 1998-V, p. 2240, para.
28. This is one interesting
example among many reflecting the impact that the jurisprudence of the European Court of Human Rights
has on domestic
legislation.
37Ibid., p. 2242, para. 39.
38Ibid., p. 2235, paras. 8-10 and p. 2236, para. 14; second emphasis added.
39Ibid., p. 2240, para. 29.
40Ibid., p. 2241-2242, paras. 38-40.
6.1.2 Searches
International human rights law provides no detailed rules about the lawfulness
of searches, but in this respect too the European case-law may provide some
guidance.
It is worthy of note, however, that the following case did not concern the
issuance of a
search warrant to the police but the granting of a warrant to a private party in
civil
proceedings.
In the Chappel case, which did not concern a criminal case but a copyright
action, the European Court had to examine the compatibility with article 8 of the
European Convention of a search carried out in the applicant’s business
premises for
the purpose of securing evidence to defend the plaintiff’s copyright against
unauthorized infringement. The Government accepted that there had been an
interference with the exercise of the applicant’s right to respect for his private
life and
home, and the applicant, for his part, agreed that the search was legitimate
under article
8(2) for the protection of “the rights of others”.41 The question that had to be
determined by the Court was thus whether the measure was carried out “in
accordance
with the law” and whether it was “necessary in a democratic society”. The
relevant
search order was a so-called “Anton Piller order”, which is an interlocutory court
order
intended to preserve evidence pending trial; it is granted on an ex parte
application
without the defendant’s being given notice and without his being heard.
The Court was satisfied in this case that the search was based on English law
that complied with the conditions both of accessibility and of foreseeability.
As to
the former condition, the relevant legal texts and case-law were all published
and thus
accessible, and as to the latter, “the basic terms and conditions for the grant of
this relief
were, at the relevant time, laid down with sufficient precision for the
‘foreseeability’
criterion to be regarded as satisfied”; this was so although there could be “some
variations” between the content of the individual orders.42
When examining whether the measure concerned was “necessary in a
democratic society”, the Court observed, moreover, that the order was
accompanied
“by safeguards calculated to keep its impact within reasonable bounds”, i.e. (1)
it was
“granted for a short period only”; (2) “restrictions were placed on the times at
which
and the number of persons by whom the Plaintiffs’ search could be effected”;
and
further, (3) “any materials seized could be used only for a specified purpose”.43
In
addition, the plaintiffs or their solicitor had given a series of undertakings and “a
variety
of remedies was available to the applicant in the event that he considered the
order to
have been improperly executed”.44
The Court did however accept that there were some “shortcomings in the
procedure followed” when the order was carried out, in that, for instance, it must
have
been distracting for Mr. Chappel to have the searches by the police and the
plaintiffs
carried out at the same time; yet they were not deemed “so serious that the
execution of
the order” could, “in the circumstances of the case, be regarded as
disproportionate to
Lawyers 227
41Eur. Court HR, Case of Chappel v. the United Kingdom, judgment of 30 March 1989, Series A, No. 152-A,
p. 21, para. 51.
43Ibid., p. 25, para. 60.
44Ibid., loc. cit.
the legitimate aim pursued”.45 Consequently, there was no violation of article 8
in this
case.
6.1.3 Interference with correspondence
Interference with correspondence by national authorities can constitute a
problem for persons deprived of their liberty and numerous complaints have
been
submitted to the European Court of Human Rights in this regard. Where they
have
been submitted by prisoners convicted of criminal offences, they will be dealt
with in
Chapter 8. In the case of Pfeifer and Plankl, however, the applicants
corresponded
with each other while in detention on remand, and in one letter, the
investigating
judge crossed out and rendered illegible certain passages which he considered to
contain “jokes of an insulting nature against prison officers”.46 The Court
considered
that the deletion of the passages constituted an unjustified interference with the
applicants’ correspondence. It agreed with the European Commission of Human
Rights “that the letter consisted rather of criticisms of prison conditions and in
particular the behaviour of certain prison officers” and noted that, although
“some of
the expressions used were doubtless rather strong ones, ... they were part of a
private
letter which under the relevant legislation ... should have been read by Mr.
Pfeifer and
the investigating judge only”.47 It next referred to its judgment in the case of
Silver and
Others, where it had held “that it was not ‘necessary in a democratic society’ to
stop
private letters ‘calculated to hold the authorities up to contempt’ or containing
‘material
deliberately calculated to hold the prison authorities up to contempt’ ...”;
although the
deletion of passages in the case of Pfeifer and Plankl was “admittedly a less
serious
interference”, it was nonetheless “disproportionate” in the circumstances of the
case
and violated article 8 of the Convention.48
The case of Schönenberg and Durmaz concerned correspondence between a
lawyer and a person held in detention on remand. The applicant, a taxi-
driver, was
arrested in Geneva in connection with suspected drug offences and subsequently
transferred to Zürich. A few days later the wife of Mr. Durmaz asked Mr.
Schönenberg
to take charge of her husband’s defence. On the same day Mr. Schönenberg sent
a letter
with enclosure to the district prosecutor’s office, as required by the Swiss
legislation,
requesting that the letter be forwarded to the addressee. In his letter, Mr.
Schönenberg
told Mr. Durmaz that he had been instructed by the latter’s wife to undertake his
defence and sent him forms giving him authority to act. He also, inter alia, wrote
that it
was his duty to point out that he was entitled to refuse to make statements and
that
anything he said could be used against him.49 The district prosecutor withheld
this letter
with enclosure and never informed Mr Durmaz about it; by virtue of an order, the
prosecutor’s office subsequently decided not to communicate the letter to Mr.
Durmaz;
instead, a Zürich lawyer was appointed to represent him.50
45Ibid., p. 27, para. 66.
46Eur. Court HR, Case of Pfeifer and Plankl v. Austria, judgment of 25 February 1992, Series A, No. 227, p.
18, para. 47.
48Ibid., loc. cit. and p. 19, para. 48.
49Eur. Court HR, Case of Schönenberg and Durmaz, judgment of 20 June 1988, Series A, No. 137, p. 8-9,
paras. 8-9.
50Ibid., p. 9, paras. 10-11.
The Court accepted that the aim of the withholding of this letter was “the
prevention of disorder or crime” and relied in this respect on its case-law
according to
which “the pursuit of this objective may ‘justify wider measures of interference in
the
case of a ... [convicted] prisoner than in that of a person at liberty’”; in the view
of the
Court, “the same reasoning may be applied to a person, such as Mr. Durmaz,
being held
on remand and against whom inquiries with a view to bringing criminal charges
are
being made since in such a case there is often a risk of collusion”.51 However, the
Court
ultimately concluded that the contested interference was not justifiable as being
“necessary in a democratic society”, rejecting the Government’s arguments that
the
letter gave Mr. Durmaz advice relating to pending criminal proceedings which
was of
such nature as to jeopardize their proper conduct and that the letter was not
sent by a
lawyer instructed by Mr. Durmaz. It noted in this respect that
“Mr. Schönenberg sought to inform the second applicant of his right ‘to
refuse to make any statement’, advising him that to exercise it would be to
his ‘advantage’. ... In that way, he was recommending that Mr. Durmaz
adopt a certain tactic, lawful in itself since, under the Swiss Federal Court’s
case-law – whose equivalent may be found in other Contracting States – it
is open to an accused person to remain silent. ... Mr. Schönenberg could
also properly regard it as his duty, pending a meeting with Mr. Durmaz, to
advise him of his right and of the possible consequences of exercising it. In
the Court’s view, advice given in these terms was not capable of creating a
danger of connivance between the sender of the letter and its recipient and
did not pose a threat to the normal conduct of the prosecution.”52
The Court further attached “little importance” to the Government’s
argument that the lawyer concerned had not been instructed by Mr. Durmaz,
since he
“was acting on the instructions of Mrs. Durmaz and had moreover so apprised
the ...
district prosecutor by telephone”. In the view of the Court,
“these various contacts amounted to preliminary steps intended to enable
the second applicant to have the benefit of the assistance of a defence
lawyer of his choice and, thereby, to exercise a right enshrined in another
fundamental provision of the Convention, namely article 6. ... In the
circumstances, the fact that Mr. Schönenberger had not been formally
appointed is therefore of little consequence.”53
There had consequently been a breach of article 8 in this case, which thus
provides an important reminder that the relationship between a person
suspected,
accused or charged with a criminal offence and his legal counsel, albeit
potential, is a
privileged one, which the domestic authorities must carefully safeguard.
However, this
issue will be further dealt with in section 6.4 below.
Under international human rights law, interferences with a person’s right
to privacy in the course of criminal investigations must be lawful and
serve a legitimate purpose in relation to which the measure concerned
must
be proportionate.
Lawyers 229
51Ibid., p. 13, para. 25.
52Ibid., pp. 13-14, para. 28.
53Ibid., p. 14, para. 29.
6.2 The right to be treated with humanity and

the right to freedom from torture
The treatment of detainees and prisoners will be dealt with in further detail in
Chapter 8, but in view of the frequency of recourse to torture and other ill-
treatment of
persons deprived of their liberty in the context of criminal investigations, it is
indispensable to emphasize here that the right to freedom from torture, cruel or
inhuman treatment or punishment is guaranteed by all the major treaties and by
the
Universal Declaration of Human Rights (art. 7 of the International Covenant on
Civil
and Political Rights; art. 4 of the African Charter on Human and Peoples’ Rights;
art.
5(2) of the American Convention on Human Rights; art. 3 of the European
Convention
on Human Rights, which does not contain the term “cruel”; and art. 4 of the
Universal
Declaration). In some legal instruments this right is reinforced, for persons
deprived of
their liberty, by the right to be treated with humanity and with respect for the
inherent
dignity of the human person (art. 10(1) of the Covenant; art. 5(2) of the
American
Convention). Given the gravity of the practice of torture, from which no part of
the
world is free, treaties aimed at efficiently promoting the abolition of this illegal
practice
have been elaborated under the auspices of the United Nations and two regional
organizations, namely, the OAS and the Council of Europe.54
The rights of persons during investigation are also dealt with in article 55 of
the Statute of the International Criminal Court. Article 55(1)(b) thus provides that
a
person under investigation shall “not be subjected to any form of coercion,
duress or
threat, to torture or to any other form of cruel, inhuman or degrading treatment
or
punishment”.
In the course of criminal investigations and judicial proceedings, the universal
and non-derogable prohibition on torture and other inhuman or degrading
treatment
or punishment is consequently to be respected at all times, without
exception even
in the direst of circumstances.55 This means that persons arrested, detained,
or
otherwise in the hands of police or prosecuting authorities for purposes of
interrogation into alleged criminal activities, either as suspects or as witnesses,
have the
right always to be treated with humanity and without being subjected to any
psychological or physical violence, duress or intimidation. As will be shown
below, the
use of any confession extracted under duress is unlawful under international
human
rights law. This is in particular stated expressis verbis in article 1 of the
Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
54See the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
1984; the
Inter-American Convention to Prevent and Punish Torture, 1985; and the European Convention for the
Prevention of Torture and
Inhuman or Degrading Treatment or Punishment, 1987.
55See e.g. article 4(2) of the International Covenant on Civil and Political Rights; article 27(2) of the
American Convention on
Human Rights; article 15(2) of the European Convention on Human Rights; article 2(2) of the Convention
against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment ; and article 5 of the Inter-American Convention to
Prevent and Punish
Torture.
Legal instruments have also been drafted aimed at the professional groups
involved in criminal investigations. The 1979 Code of Conduct for Law
Enforcement
Officials provides inter alia in its article 5 that “no law enforcement official may
inflict,
instigate or tolerate any act of torture or other cruel, inhuman or degrading
treatment or
punishment”. The 1990 Guidelines on the Role of Prosecutors contain in
particular the
following important provision:
“16. When prosecutors come into possession of evidence against
suspects that they know or believe on reasonable grounds was obtained
through recourse to unlawful methods, which constitute a grave violation
of the suspect’s human rights, especially involving torture or cruel,
inhuman or degrading treatment or punishment, or other abuses of human
rights, they shall refuse to use such evidence against anyone other than
those who used such methods, or inform the Court accordingly, and shall
take all necessary steps to ensure that those responsible for using such
methods are brought to justice.”
Also, article 54(1)(c) of the Statute of the International Criminal Court
provides that one of the duties of the Prosecutor with respect to investigations is
to
“fully respect the right of persons arising under this Statute”, which means, inter
alia,
the right specified in article 55(1)(c) concerning the prohibition of duress and
torture.
Furthermore, as stated in preambular paragraph 7 of the 1985 Basic Principles
on the Independence of the Judiciary, “judges are charged with the ultimate
decision
over life, freedoms, rights, duties and property of citizens”, and it is therefore
also the
duty of judges to be particularly alert to any sign of maltreatment or duress of
any kind
that might have taken place in the course of criminal investigations and
deprivation of
liberty, and to take the necessary measures whenever faced with a suspicion of
maltreatment.56
Judges, prosecutors and lawyers must be particularly alert for any sign of
torture, including rape, and other forms of sexual abuse and ill-treatment of
women
and children in custody. Torture and ill-treatment of these vulnerable groups
while in
the hands of police officers and prison officials are commonplace in many
countries,
and in order to bring such illegal practices to an end, it is indispensable that the
members of the legal professions at all times play an active role in their
prevention,
investigation and punishment.
Torture and other forms of ill-treatment are prohibited at all times,
including during criminal investigations, and can never be justified; these
are acts that must be prevented, investigated and punished.
Judges, prosecutors and lawyers must be particularly alert for any sign of
torture or ill-treatment of women and children in custody.
Lawyers 231
56Provisions against torture can also be found in article 6 of the 1988 Body of Principles for the Protection of
All Persons under
Any Form of Detention or Imprisonment.
6.3 The right to be notified of the charges in a

language one understands
Article 14(3)(a) of the International Covenant on Civil and Political Rights
provides that in the determination of any criminal charge against him, everyone
shall be
entitled “to be informed promptly and in detail in a language which he
understands of
the nature and cause of the charge against him”. Article 6(3)(a) of the European
Convention is similarly worded, while, according to article 8(2)(b) of the
American
Convention on Human Rights, the accused is entitled to “prior notification in
detail ...
of the charges against him”. The African Charter on Human and Peoples’ Rights
contains no express provision guaranteeing the right to be informed of criminal
charges
against oneself. However, the African Commission on Human and Peoples’ Rights
has
held that persons arrested “shall be informed promptly of any charges against
them”.57
With regard to a person under arrest, Principle 10 of the Body of Principles for
the
Protection of All Persons under Any Form of Detention or Imprisonment provides
that he “shall be promptly informed of any charges against him”.
The right to be informed of charges in a language one understands implies,
of course, that the domestic authorities must provide adequate interpreters and
translators in order to fulfil this requirement, which is essential for the purpose of
allowing a suspect to defend him or herself adequately. This more general right
to
provide interpretation during investigation is specifically included in Principle 14
of the
Body of Principles for the Protection of All Persons under Any Form of Detention
or
Imprisonment, according to which
“A person who does not adequately understand or speak the language used
by the authorities responsible for his arrest, detention or imprisonment is
entitled to receive promptly in a language which he understands the
information referred to in principle 10, principle 11, paragraph 2, principle
12, paragraph 1, and principle 13 and to have the assistance, free of charge,
if necessary, of an interpreter in connection with legal proceedings
subsequent to his arrest.”
The duty to inform a suspect of his or her rights in general during
investigation “in a language the suspect speaks and understands” is also
included, for
instance, in article 42 (A) of the Rules of Procedure and Evidence of the Rwanda
and
Yugoslavia Criminal Tribunals, which guarantee, furthermore, the right of a
suspect “to
have the free legal assistance of an interpreter” if he “cannot understand or
speak the
language to be used for questioning”.
*****
According to the Human Rights Committee, the right to be informed in
article 14(3)(a) “applies to all cases of criminal charges, including those of
persons not
in detention”, and the term “‘promptly’ requires that information is given in the
57ACHPR, Media Rights Agenda (on behalf of Niran Maloulu) v. Nigeria, Communication No. 224/98, adopted
during the 28th session, 23 October
– 6 November 2000, para. 43 of the text of the decision as published at
manner described as soon as the charge is first made by a competent
authority”.58 The
Committee has in this respect specified that
“this right must arise when in the course of an investigation a court or an
authority of the prosecution decides to take procedural steps against a
person suspected of a crime or publicly names him as such. The specific
requirements of subparagraph 3(a) may be met by stating the charge either
orally or in writing, provided that the information indicates both the law
and the alleged facts on which it is based”.59
In the view of the Committee, this also means that the “detailed information
about the charges against the accused must not be provided immediately upon
arrest,
but with the beginning of the preliminary investigation or the setting of
some
other hearing which gives rise to a clear official suspicion against the
accused”.60
The duty to inform the accused under article 14(3)(a) of the Covenant is thus
also
“more precise than that for arrested persons under” article 9(2) of the Covenant
and, as
long as the accused has been promptly brought before a judge as required by
article
9(3), “the details of the nature and cause of the charge need not necessarily be
provided
to an accused person immediately upon arrest”.61 In an earlier case the
Committee held,
however, that “the requirement of prompt information ... only applies once the
individual has been formally charged with a criminal offence”, and that it does
not,
consequently, “apply to those remanded in custody pending the result of police
investigations”, a situation covered by article 9(2) of the Covenant.62
The question is, however, whether the reasoning in this latter case is
consistent with the Committee’s views as expressed in its General
Comment or
the earlier cases referred to.
In applying the principle of prompt information, the Committee concluded
that article 14(3)(a) had not been violated in a case where the author
complained that he
had been detained for six weeks before being charged with the offence for which
he
was later convicted. The Committee concluded simply that it transpired from the
material before it that the author had been “informed of the reasons for his
arrest and
the charges against him by the time the preliminary hearing started”.63
Article 14(3)(a) had however been violated in a case where the victim had not
been informed of the charges against him prior to his being tried in camera by a
military
court that sentenced him to 30 years’ imprisonment and 15 years of special
security
measures; furthermore, he had never been able to contact the lawyer assigned
to him.64
Lawyers 233
58General Comment No. 13 (Article 14), in United Nations Compilation of General Comments, p. 124, para.
8; emphasis added.
60Communication No. 561/1993, D. Williams v. Jamaica (Views adopted on 8 April 1997), UN doc. GAOR,
A/52/40 (vol. II),
61Communication No.702/1996, C. McLawrence v. Jamaica (Views adopted on 18 July 1997), UN doc. GAOR,
A/52/40 (vol. II),
p. 232, para. 5.9.
62Communication No. 253/1987, P. Kelly v. Jamaica (Views adopted on 8 April 1991), UN doc. GAOR,
A/46/40, p. 247,
para. 5.8; emphasis added.
63Communication No. 561/1993, D. Williams v. Jamaica (Views adopted on 8 April 1997), UN doc. GAOR,
A/52/40 (vol. II),
p. 151, para. 9.2.
64Communication No. R.14/63, R. S. Antonaccio v. Uruguay (Views adopted on 28 October 1981), UN doc.
GAOR, A/37/40,
p. 120, para. 20 as compared with p. 119, para. 16.2.
A particular problem is posed by trials in absentia. Without outlawing such
proceedings altogether under article 14, the Committee has held that they “are
in some
circumstances (for instance, when the accused person, although informed of the
proceedings sufficiently in advance, declines to exercise his right to be present)
permissible in the interest of the proper administration of justice”; yet special
precautions are called for in this respect, and “the effective exercise of the rights
under
article 14 presupposes that the necessary steps should be taken to inform the
accused
beforehand about the proceedings against him” under article 14(3)(a), although
there
must also be “certain limits to the efforts which can duly be expected of the
responsible
authorities of establishing contact with the accused”.65
The case of Mbenge
The limits on the responsibility of domestic authorities to trace an accused person
had not been reached in the case of Mbenge, where the State party had “not challenged
the author’s contention that he had known of the trials only through press reports
after they had taken place”. Although the two relevant judgements stated “explicitly
that summonses to appear had been issued by the clerk of the court”, there was “no
indication ... of any steps actually taken by the State party in order to transmit the
summonses to the author, whose address in Belgium [was] correctly reproduced in”
one of the judgements and “was therefore known to the judicial authorities”.66
Indeed, the fact that, according to the judgement in the second trial, the summons
had been issued only three days before the beginning of the hearings before the court,
confirmed the Committee in its conclusion “that the State party failed to make
sufficient efforts with a view to informing the author about the impending court
proceedings, thus enabling him to prepare his defence”. It had consequently violated
article 14(3)(a), (b), (d) and (e) of the Covenant.67
*****
Article 8(2)(b) of the American Convention on Human Rights was violated in
the Castillo Petruzzi et al. case, where “the accused did not have sufficient
advance
notification, in detail, of the charges against them”; indeed, the indictment was
presented on 2 January 1994, and the attorneys were only allowed to view the
file on 6
January “for a very brief time”, with the judgement being rendered the following
day.68
*****
65Communication No. 16/1977, D. Monguya Mbenge v. Zaire (Views adopted on 25 March 1983), UN doc.
GAOR, A/38/40,
p. 138, paras. 14.1-14.2.
67Ibid., loc. cit.
68I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, Series C, No. 52, p. 202,
paras. 141-142 read in
conjunction with p. 201, para. 138.
Under article 6(3)(a) of the European Convention on Human Rights, the
European Court held that it was sufficient in order to comply with this provision
that
the applicants were given a “charge-sheet” within respectively ten hours and
one hour
and a quarter after their arrest; these charge-sheets contained information about
the
charge (breach of the peace) as well as the date and place of its commission.69
However, article 6(3)(a) was violated in a case where the applicant, who was of
foreign origin, had informed the Italian authorities of his difficulties in
understanding
the judicial notification that had been served on him, asking them to send the
information to him in his mother tongue or in one of the official languages of the
United Nations. He received no answer to his letter and the authorities continued
to
draw up the documents in Italian. The Court observed that “the Italian judicial
authorities should have taken steps to comply with [the applicant’s request] so
as to
ensure observance of the requirements of [article 6(3)(a)] unless they were in a
position
to establish that the applicant in fact had sufficient knowledge of Italian to
understand
from the notification the purport of the letter notifying him of the charges
brought
against him”.70
Every person charged with a criminal offence must be informed
promptly in a language which he or she understands of the
charges against him, with details being given as to the facts and the law
on which the charge is based.
This information must be given in good time before the trial so as to
allow the accused person to effectively prepare his or her defence.
6.4 The right to legal assistance
The right to prompt legal assistance upon arrest and detention is essential in
many respects, both in order to guarantee the right to an efficient defence and
for the
purpose of protecting the physical and mental integrity of the person deprived of
his or
her liberty. While all relevant human rights treaties guarantee the right of an
accused to
legal counsel of one’s own choosing (art. 14(3(d) of the International Covenant,
art.
7(1)(c) of the African Charter and art. 6(3)(c) of the European Convention),
article
8(2)(d) of the American Convention on Human Rights provides moreover that
during
criminal proceedings every accused person has the right “to communicate
freely and
privately with his counsel”(emphasis added). Neither the International
Covenant,
the African Charter nor the European Convention contains a similar express
protection
of the confidentiality of the client-lawyer relationship.
However, Rule 93 of the 1955 United Nations Standard Minimum Rules for
the Treatment of Prisoners provides that
Lawyers 235
69Eur. Court. HR, Case of Steel and Others v. the United Kingdom, judgment of 23 September 1998, Reports
1998-VII, p. 2741, para. 85.
70Eur. Court HR, Case of Brozicek v. Italy, judgment of 19 December 1989, Series A, No. 167, p. 18, para.
41.
“For the purposes of his defence, an untried prisoner shall be allowed to
apply for free legal aid where such aid is available, and to receive visits from
his legal adviser with a view to his defence and to prepare and hand to him
confidential instructions. For these purposes, he shall if he so desires be
supplied with writing material. Interviews between the prisoner and his
legal adviser may be within sight but not within the hearing of a police or
institution official.”
Principle 18 of the 1988 Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment provides further details in this
respect:
“1. A detained or imprisoned person shall be entitled to communicate
and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and
facilities for consultation with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to
consult and communicate, without delay or censorship and in full
confidentiality, with his legal counsel may not be suspended or restricted
save in exceptional circumstances, to be specified by law or lawful
regulations, when it is considered indispensable by a judicial or other
authority in order to maintain security and good order.
4. Interviews between a detained or imprisoned person and his legal
counsel may be within sight, but not within the hearing, of a law
enforcement official.
5. Communications between a detained or imprisoned person and his
legal counsel mentioned in the present principle shall be inadmissible as
evidence against the detained or imprisoned person unless they are
connected with a continuing or contemplated crime.”
According to Principle 15 of the Body of Principles, “communication of the
detained or imprisoned person with the outside world, and in particular his family
or
counsel, shall not be denied for more than a matter of days”. The Human Rights
Committee itself has stated in its General Comment No. 20 on article 7 that
provisions
“should ... be made against incommunicado detention”.71
The right to legal assistance, including legal assistance without payment where
the suspect has insufficient funds, is also guaranteed by Rule 42(A)(i) of the
Rules of
Procedure and Evidence of the Rwanda and Yugoslavia Tribunals. Moreover, Rule
67(A) of the Rules of Detention of the Yugoslavia Tribunal provides that “each
detainee shall be entitled to communicate fully and without restraint with his
defence
counsel, with the assistance of an interpreter where necessary” and, further, that
“all
such correspondence and communications shall be privileged”. Lastly, Rule
67(D) of
these Rules of Detention stipulates that interviews “with legal counsel and
interpreters
shall be conducted in the sight but not within the hearing, either direct or
indirect, of
the staff of the detention unit”. Similar provisions are contained in Rule 65 of the
Rules
of Detention of the Rwanda Court.
*****
The right of access to legal assistance must be effectively available, and,
where this has not been the case, the Human Rights Committee has concluded
that
article 14(3) was violated.72 This provision was of course also violated where the
person
concerned did not have access to any legal assistance at all during the first ten
months of
his detention and, in addition, was not tried in his presence.73 However, this, like
many
other cases dealt with by the Human Rights Committee, was an extreme case,
since it
concerned the situation of detainees held in the shadow of a dictatorship.
*****
In its Resolution on the Right to Recourse and Fair Trial, the African
Commission on Human and Peoples’ Rights reinforced the right to defence
contained
in article 7(1)(c) of the African Charter by holding that in the determination of
charges
against them, individuals shall in particular be entitled to “communicate in
confidence
with counsel of their choice”. This right was violated in the case of Media Rights
Agenda,
acting on behalf of Mr. Niran Malaolu, who was neither allowed access to a
lawyer, nor
represented by a lawyer of his own choice.74
*****
The European Court of Human Rights has observed that “the European
Convention does not expressly guarantee the right of a person charged with a
criminal
offence to communicate with defence counsel without hindrance”; but instead it
inter
alia referred to article 93 of the Standard Minimum Rules for the Treatment of
Prisoners adopted by the Committee of Ministers of the Council of Europe by
resolution (73) 5, which reads as follows:
“An untried prisoner shall be entitled, as soon as he is imprisoned, to
choose his legal representative, or shall be allowed to apply for free legal aid
where such aid is available, and to receive visits from his legal adviser with a
view to his defence and to prepare and hand to him, and to receive,
confidential instructions. At his request he shall be given all necessary
facilities for this purpose. In particular, he shall be given the free assistance
of an interpreter for all essential contacts with the administration and for
his defence. Interviews between the prisoner and his legal adviser may be
within sight but not within hearing, either direct or indirect, of a police or
institution official.”75
The Court further stated that it “considers that an accused’s right to
communicate with his advocate out of hearing of a third person is part of the
basic
requirements of a fair trial in a democratic society and follows from” article 6(3)
(c) of
Lawyers 237
72See, among many other cases, Communication No. R.2/8, B. Weismann Lanza and A. Lanza Perdomo v.
Uruguay (Views adopted
on 3 April 1980), in UN doc. GAOR, A/35/40, p. 118, para. 16; and Communication No. R.1/6, M. A. Millán
Sequeira v. Uruguay
(Views adopted on 29 July 1980), p. 131, para. 16.
73Communication No. R.7/28, I. Weinberger v. Uruguay (Views adopted on 29 October 1980), in UN doc.
GAOR, A/36/40,
p. 119, para. 16.
74ACHPR, Media Rights Agenda (on behalf of Niran Malaolu) v. Nigeria, Communication No. 224/98, decision
adopted during the 28th session,
23 October – 6 November 2000, paras. 55-56 of the text of the decision as published at
75Eur. Court HR, Case of S. v. Switzerland, judgment of 28 November 1991, Series A, No. 220, p. 15, para.
48; emphasis added.
the Convention. “If a lawyer were unable to confer with his client and receive
confidential instructions from him without such surveillance, his assistance would
lose
much of its usefulness, whereas the Convention is intended to guarantee rights
that are
practical and effective.”76
The case of S. v. Switzerland
In the case of S. v. Switzerland, the applicant complained of a violation of article 6(3)(c)
in that the Swiss authorities had exercised surveillance of his meetings with his lawyer
and only authorized the lawyer to consult a fraction of the case-file. It also appears
from the facts that some letters from the applicant to his lawyer had been intercepted
and that on one occasion the policemen supervising the meeting had even taken
notes. The Government argued before the Court that the surveillance was justified
for reasons of “collusion” since there was a danger that the two lawyers for the
co-accused would co-ordinate their defence strategy.
The Court concluded, however, that the applicant’s right under article 6(3)(c) to
communicate with his lawyer was violated, because, “notwithstanding the
seriousness of the charges against the applicant”, the possibility of collusion could
not “justify the restriction in issue and no other reason [had] been adduced cogent
enough to do so”. In the view of the Court there was “nothing extraordinary in a
number of defence counsel collaborating with a view to co-ordinating their defence
strategy”, and neither “the professional ethics” of the Court-appointed defence
counsel “nor the lawfulness of his conduct were at any time called into question in
this case”. Furthermore, “the restriction in issue lasted over seven months”.77
As can be seen, the case-law of the international monitoring organs proves
that the rules on fair trial contained in the international human rights treaties,
although
principally appearing to aim at ensuring fair court proceedings as such, may also
be
applicable to the pre-trial stages of criminal investigation, at least to the extent
necessary
to ensure a subsequent fair hearing before an independent and impartial court of
law.
This follows inter alia from the case-law of the Human Rights Committee
with regard to the right of access to a lawyer under article 14, which will be dealt
with in
further depth in Chapter 7. Further, so far as article 6 of the European
Convention on
Human Rights is concerned, the European Court has held that in particular article
6(3)
“may be relevant before a case is sent for trial if and so far as the fairness of the
trial is
likely to be seriously prejudiced by an initial failure to comply with its
provisions”.78
With regard to article 6(3)(c), which concerns the right to defend oneself in
person or
through legal assistance of one’s own choosing, the manner of its application
“during
the preliminary investigation depends on the special features of the proceedings
77Ibid., para. 49.
78Eur. Court HR, Case of John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I,
p. 54, para. 62.
involved and on the circumstances of the case”.79 In the case of Murray, the
European
Court explained its position in the following terms:
“63. National laws may attach consequences to the attitude of an accused
at the initial stages of police interrogation which are decisive for the
prospects of the defence in any subsequent criminal proceedings. In such
circumstances Article 6 will normally require that the accused be allowed to
benefit from the assistance of a lawyer already at the initial stages of police
interrogation. However, this right, which is not explicitly set out in the
Convention, may be subject to restrictions for good cause. The question, in
each case, is whether the restriction, in the light of the entirety of the
proceedings, has deprived the accused of a fair hearing.”80
Early access to a lawyer: The Murray case
In the case of Murray, the applicant was refused access to a lawyer during the first 48
hours of his detention, a measure decided under Section 15 of the Northern Ireland
(Emergency Provisions) Act 1987 “on the basis that the police had reasonable
grounds to believe that the exercise of the right of access would, inter alia, interfere
with the gathering of information about the commission of acts of terrorism or make
it more difficult to prevent such an act”.81 The applicant was cautioned under the
Criminal Evidence (Northern Ireland) Order 1988 that, if he chose to remain silent,
inferences might be drawn in support of evidence against him. The European Court
considered that the scheme contained in the said Order
“... is such that it is of paramount importance for the rights of the defence
that an accused has access to a lawyer at the initial stages of police
interrogation. It observes ... that, under the Order, at the beginning of
police interrogation, an accused is confronted with a fundamental dilemma
relating to his defence. If he chooses to remain silent, adverse inferences
may be drawn against him in accordance with the provisions of the Order.
On the other hand, if the accused opts to break his silence during the course
of interrogation, he runs the risk of prejudicing his defence without
necessarily removing the possibility of inferences being drawn against
him.82
It then concluded that, “under such conditions the concept of fairness enshrined in
Article 6 requires that the accused has the benefit of the assistance of a lawyer already
at the initial stages of police interrogation”, and that “to deny access to a lawyer for
the first 48 hours of police questioning, in a situation where the rights of the defence
may well be irretrievably prejudiced, is – whatever the justification for such denial –
incompatible with the rights of the accused under Article 6”.83
Lawyers 239
79Ibid., loc. cit.
80Ibid., pp. 54-55, para. 63.
81Ibid., p. 55, para. 64.
82Ibid., para. 66.
83Ibid., loc. cit.
Upon his or her deprivation of liberty, a person has the right of access to
legal counsel without delay and to be able to confer with counsel in
private. To have prompt access to a lawyer at an early stage of police
investigations may be essential in order to avoid lasting prejudice with
regard to the rights of the defence.
6.5 The right not to be forced to testify against
oneself/The right to remain silent
Article 14(3)(g) of the International Covenant guarantees the right of
everyone “not to be compelled to testify against himself or to confess guilt”, and
article
8(2)(g) of the American Convention provides for the right of everyone “not to be
compelled to be a witness against himself or to plead guilty”, a provision that is
strengthened by article 8(3) according to which “a confession of guilt by the
accused
shall be valid only if it is made without coercion of any kind”. The African Charter
and
the European Convention contain no similar provision. The effective protection of
this
right is of particular importance in the course of the preliminary investigations,
when
the temptation may be greatest to exert pressure on the suspected persons in
order to
have them confess guilt. It is noteworthy that Guideline 16 of the Guidelines on
the
Role of Prosecutors also provides that prosecutors shall refuse evidence that has
been
obtained through recourse to unlawful methods.84
The right not to be compelled to incriminate oneself and to confess guilt is
also contained in article 55(1)(a) of the Statute of the International Criminal
Court and
in articles 20(4)(g) and 21(4)(g) of the respective Statutes of the International
Criminal
Tribunals for Rwanda and the former Yugoslavia.
*****
Article 14(3)(g) of the Covenant has been violated on several occasions, such
as where the author had been “forced by means of torture to confess guilt”. He
had in
fact been held incommunicado for three months, a period during which he was
“subjected
to extreme ill-treatment and forced to sign a confession”.85 While grave
situations of
this kind are clearly incompatible with the prohibition on forced self-
incrimination,
there are, as will be seen below, other circumstances when it might be more
difficult to
assess the lawfulness of the compulsion to which an accused person has been
subjected.
*****
From the right not to be compelled to testify against oneself flows the right to
remain silent, although the four human rights treaties examined in this Manual
do not
expressly provide for this right either during police questioning or during trial
84See Principle 16 quoted in extenso, section 6.2 above.
85Communication No. 139/1983, H. Conteris (Views adopted on 17 July 1985), UN doc. GAOR, A/40/40, p.
202, para. 10 read
in conjunction with p. 201, para. 9.2. For another case of forced self-incrimination, see Communication No.
159/1983, R. Cariboni v.
Uruguay (Views adopted on 27 October 1987), UN doc. GAOR, A/43/40, para. 10 at p. 190.
proceedings. However, Rule 42(A)(iii) of the Rules of Procedure and Evidence of
both
the International Criminal Tribunal for Rwanda and the International Criminal
Tribunal for the former Yugoslavia makes express reference to this right, as does
article
55(2)(b) of the Statute of the International Criminal Court. Furthermore, the
European
Court of Human Rights has unequivocally held that
“there can be no doubt that the right to remain silent under police
questioning and the privilege against self-incrimination are generally
recognized international standards which lie at the heart of the notion
of a fair procedure under Article 6. ... By providing the accused with
protection against improper compulsion by the authorities these
immunities contribute to avoiding miscarriages of justice and to securing
the aims of Article 6.”86
Is the right to remain silent absolute?
View of the European Court of Human Rights
In this particular case, the applicant was arrested under the Prevention of Terrorism
(Temporary Provisions) Act 1989 and cautioned by the police officer pursuant to
article 3 of the Criminal Evidence (Northern Ireland) Order 1988 that, although he
did not have to say anything unless he wished to do so, his silence might be treated in
court as supporting any relevant evidence against him; he was subsequently cautioned
several times. The applicant was arrested coming down the stairs in a house in which
alleged IRA terrorists were apprehended together with their victim. During his trial
for the offence of conspiracy to murder, the applicant remained silent but was again
cautioned that the court, in deciding whether he was guilty, might take into account
against him “to the extent that it considers proper” his “refusal to give evidence or to
answer any questions”.87 He was found guilty of the offence of aiding and abetting
the unlawful imprisonment of the man against whom there was a conspiracy to
murder, but acquitted on the other charges.
The European Court refrained in this case from giving “an abstract analysis of the
scope of” the right to remain silent and the privilege against self-incrimination and, in
particular, of what constitutes in this context ‘improper compulsion’”, because what
was at stake was
“whether these immunities are absolute in the sense that the exercise
by an accused of the right to silence cannot under any circumstances
be used against him at trial or, alternatively, whether informing him
in advance that, under certain conditions, his silence may be so used,
is always to be regarded as ‘improper compulsion’”.88
Lawyers 241
86Eur. Court HR, Case of John Murray v. the United Kingdom, judgment of 8 February 1996, Reports 1996-I,
added.
87Ibid., p. 38, para. 20.
88Ibid., p. 49, para. 46.
Is the right to remain silent absolute?
View of the European Court of Human Rights (cont.d)
While it was “self-evident” to the Court “that it is incompatible with the immunities
under consideration to base a conviction solely or mainly on the accused’s silence or
on a refusal to answer questions or to give evidence himself”, it was “equally obvious
that these immunities cannot and should not prevent that the accused’s silence, in
situations which clearly call for an explanation from him, be taken into account in
assessing the persuasiveness of the evidence adduced by the prosecution”. It
followed that, “wherever the line between these two extremes is to be drawn”, the
question whether the right to be silent “is absolute must be answered in the
negative”.89 It thus also followed that it “cannot be said ... that an accused’s decision
to remain silent throughout criminal proceedings should necessarily have no
implications when the trial court seeks to evaluate the evidence against him”.
Agreeing with the respondent Government, the Court further observed that
“established international standards in this area, while providing for the right to
silence and the privilege against self-incrimination are silent on this point”.90 This
also meant that the question whether
“... the drawing of adverse inferences from an accused’s silence infringes
article 6 is a matter to be determined in the light of all the circumstances of
the case, having particular regard to the situations where inferences may be
drawn, the weight attached to them by the national courts in their
assessment of the evidence and the degree of compulsion inherent in the
situation”.91
The European Court carefully analysed the powers of the national trial judge and
concluded that he could only draw “common-sense inferences which [he] considers
proper, in the light of the evidence against the accused”. In addition, the trial judge
had “a discretion whether, on the facts of the particular case, an inference should be
drawn”, and, finally, the exercise of discretion was “subject to review by the appellate
courts”.92 Against the background of this particular case, the European Court
eventually denied that “the drawing of reasonable inferences from the applicant’s
behaviour had the effect of shifting the burden of proof from the prosecution to the
defence so as to infringe the principle of the presumption of innocence”.93
It is, however, too early to know whether the above European interpretation
of the right to silence will be shared by the Human Rights Committee and/or the
other
regional monitoring organs.
*****
89Ibid., para. 47.
90Ibid., loc. cit.
91Ibid., pp. 49-50, para. 47.
The Statute of the International Criminal Court: It is noted in this respect
that article 55(2)(b) of the Statute of the International Criminal Court provides
that a
suspect shall be informed prior to questioning that he has a right to “remain
silent,
without such silence being a consideration in the determination of guilt
or
conscience” (emphasis added). Whilst the terms of this Statute cannot be
considered to
be an authoritative interpretation of the human rights treaties examined in this
Manual,
it constitutes a legal document with considerable juridical weight. This important
subject gives rise to the following questions:
_ Can the European Court’s ruling in the Murray case be considered to be
consistent
with article 55(2)(b) of the Statute of the International Criminal Court?
_ Does the reliance on the role played by “common sense implications” provide a
sufficient guarantee against possible miscarriages of justice?
_ Is this notion sufficiently clear to have a place in the evaluation of evidence in
criminal proceedings?
_ What if, for instance, the suspect refused to speak out of fear of reprisals by
the
co-accused and other persons?
A suspect must at no time, and in no circumstances, be compelled to
incriminate himself or herself or to confess guilt; a suspect has the right to
remain silent at all times.
6.6 The duty to keep records of interrogation
It is essential, both in order to prevent and if need be to prove the occurrence
of treatment prohibited by international human rights law, and consequently also
for
the future judicial proceedings, that records of interrogations be kept and that
they
remain accessible both to prosecuting authorities and to the defence. On this
issue, the
Human Rights Committee stated in its General Comment No. 20 regarding article
7 of
the International Covenant that “the time and place of all interrogations should
be
recorded, together with the names of all those present and this information
should also
be available for purposes of judicial or administrative proceedings”.94
Principle 23 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment deals with the duty to record in the
following
terms:
“1. The duration of any interrogation of a detained or imprisoned
person and of the intervals between interrogations as well as the identity of
the officials who conducted the interrogations and other persons present
shall be recorded and certified in such form as may be prescribed by law.
2. A detained or imprisoned person, or his counsel when provided by
law, shall have access to the information described in paragraph 1 of the
present principle.”
Lawyers 243
Rule 43 of the Rules of Procedure and Evidence of the International Criminal
Tribunals for Rwanda and the former Yugoslavia provides that interrogations of
suspects “shall be audio-recorded or video-recorded”, in accordance with a
special
procedure detailed therein. The suspect shall be supplied with a copy of the
transcript
of this recording (Rule 43(iv)).
Detailed records of interrogations must be kept at all times and must be
made available to the suspect and his or her legal counsel.
6.7 The right to adequate time and facilities to
prepare one’s defence
Article 14(3)(b) of the International Covenant on Civil and Political Rights
provides that in the determination of any criminal charge against him, everyone
shall be
entitled “to have adequate time and facilities for the preparation of his defence
and to
communicate with counsel of his own choosing”. Article 8(2)(c) of the American
Convention on Human Rights guarantees the accused “adequate time and
means for
the preparation of his defence”, while article 6(3)(b) of the European Convention
on
Human Rights speaks of “adequate time and facilities for the preparation of his
defence”. Article 7(1) of the African Charter on Human and Peoples’ Rights
globally
guarantees “the right to defence, including the right to be defended by counsel
of his
choice”. Articles 20 and 21 respectively of the Statutes of the International
Criminal
Tribunals for Rwanda and the former Yugoslavia were heavily inspired by article
14 of
the International Covenant and both provide that the accused shall “have
adequate
time and facilities for the preparation of his [or her] defence and to communicate
with
counsel of his or her own choosing” (arts. 20(4)(b) and 21(4)(b)). Since this right
will be
examined in fuller detail in Chapter 7, only a limited number of examples from
the
international jurisprudence will be examined here, since they more particularly
concern
the lack of time and facilities to prepare one’s defence at an early stage of the
investigations.
*****
As emphasized by the Human Rights Committee, “the right of an accused
person to have adequate time and facilities for the preparation of his or her
defence is
an important element of the guarantee of a fair trial and a corollary of the
principle of
equality of arms”.95 In General Comment No. 13 on article 14, the Committee
also
explained that the meaning of “‘adequate time’ depends on the circumstances
of each
case, but the facilities must include access to documents and other
evidence which
the accused requires to prepare his case, as well as the opportunity to engage
and
communicate with counsel. When the accused does not want to defend himself
in
person or request a person or an association of his choice, he should be able to
have
recourse to a lawyer.”96 This provision moreover “requires counsel to
communicate
95Communication No. 349/1989, C. Wright v. Jamaica (Views adopted on 27 July 1992), UN doc. GAOR,
A/47/40, p. 315,
para. 8.4; and similar wording in Communication No. 702/1996, C. McLawrence v. Jamaica (Views adopted
on 18 July 1997), UN doc.
GAOR, A/52/40, p. 232, para. 5.10.
96United Nations Compilation of General Comments, p. 124, para. 9; emphasis added.
with the accused in conditions giving full respect for the confidentiality of
their
communications”, and lawyers “should be able to counsel and to represent
their
clients in accordance with their established professional standards and
judgement
without any restrictions, influences, pressures or undue interference from any
quarter”.97
Where the author claimed that he did not have adequate time and facilities for
the preparation of his defence, the Committee noted that he was actually
“represented at
trial by the same counsel who had represented him at the preliminary
examination”, and
further, that “neither the author nor counsel ever requested the Court for more
time in
the preparation of the defence”; consequently, there was no violation of article
14(3)(b).98
If the defence considers that it has not had sufficient time and facilities
to prepare
itself, it is thus important that it requests an adjournment of the
proceedings.
The Committee has however emphasized that “in cases in which a capital
sentence may be pronounced, it is axiomatic that sufficient time must be
granted to the
accused and his or her counsel to prepare the defence for the trial”, and that
“this
requirement applies to all the stages of the judicial proceedings”; again,
however, “the
determination of what constitutes ‘adequate time’ requires an assessment of the
individual circumstances of each case”.99
The case of Wright
In the case of Wright, the author contended that he had not had adequate time for the
preparation of the defence, “that the attorney assigned to the case was instructed on
the very day on which the trial began”, and that, therefore, “he had less than one day
to prepare the case”.100 The Committee accepted that “there was considerable
pressure to start the trial as scheduled” because of the arrival of a witness from the
United States and that it was “uncontested” that, as submitted by the author, the
lawyer was appointed “on the very morning the trial was scheduled to start” and,
accordingly, “had less than one day to prepare” the author’s defence; yet it was
“equally uncontested that no adjournment of the trial was requested by” the author’s
counsel.101 Consequently, the Committee did “not consider that the inadequate
preparation of the defence may be attributed to the judicial authorities of the State
party”, adding that “if counsel had felt that they were not properly prepared, it was
incumbent upon them to request the adjournment of the trial”.102 It followed
that there was no violation of article 14(3)(b) in this case. The applicant was convicted
of murder and sentenced to be executed.
Lawyers 245
98Communication No. 528/1993, M. Steadman v. Jamaica (Views adopted on 2 April 1997), UN doc. GAOR,
A/52/40 (vol. II),
p. 26, para. 10.2.
99Communication No. 349/1989, C. Wright v. Jamaica (Views adopted on 27 July 1992), UN doc. GAOR,
A/47/40, p. 315, para.
8.4; emphasis added.
100Ibid., p. 311, para. 3.4.
101Ibid., pp. 315-316, para. 8.4.
102Ibid., loc. cit.; emphasis added. For a similar reasoning in a death penalty case see also Communication
No. 702/1996, C.
McLawrence v. Jamaica (Views adopted on 18 July 1997), UN doc. GAOR, A/52/40, p. 232, para. 5.10.
In the light of the outcome in the Wright case, it might be asked whether, in
death penalty cases or in other cases where a heavy prison sentence may be
imposed on
the accused at the end of his or her trial, it is fair to lay the entire burden for
compliance
with article 14(3)(b) on the defence. In the interests of justice, might the judge
concerned perhaps have a duty to see to it that the accused is indeed ensured
adequate
time and facilities for the preparation of his defence?
The case of Smith
In the case of Smith, another death penalty case, the Committee concluded that article
14(3)(b) had in fact been violated. In this case the author also complained that his trial
was unfair, and that he had inadequate time to prepare his defence since he could only
consult with his lawyer on the opening day of his trial and that, as a result, a number
of key witnesses could not be called. According to the Committee it was
“uncontested that the trial defence was prepared on the first day of the trial”; one of
the author’s court-appointed lawyers asked another lawyer to replace him, and
another had withdrawn the day prior to the beginning of the trial. The attorney who
actually defended the author was present in court at 10 a.m. when the trial opened
and asked for an adjournment until 2 p.m. “so as to enable him to secure professional
assistance and to meet with his client, as he had not been allowed by the prison
authorities to visit him late at night the day before”.103 The request was granted and
the lawyer consequently “had only four hours to seek an assistant and to
communicate with the author, which he could only do in a perfunctory manner”.104
This, the Committee concluded, was “insufficient to prepare adequately the defence
in a capital case” and there was moreover “the indication that this affected counsel’s
possibility of determining which witnesses to call”.105 Consequently, these facts
constituted a violation of article 14(3)(b) of the Covenant.106
In the Smith case the defence actually asked for a brief adjournment. What do
you think the Committee would have decided if such an adjournment had not
been
requested by the defence lawyer?
Incommunicado detention: Article 14(3)(b) was also violated in the case of
Marais, who was unable to communicate with his lawyer and to prepare his
defence,
except for two days during the trial itself. Although the lawyer had “obtained a
permit
from the Examining Magistrate to see his client, he was repeatedly prevented
from
doing so”, his client being held incommunicado.107 Both article 14(3)(b) and
article
14(3)(d) were violated in the case of Yasseen and Thomas, where Yasseen had
no legal
103Communication No. 282/1988, L. Smith v. Jamaica (Views adopted on 31 March 1993), UN doc. A/48/40
(vol. II), p. 35, para.
10.4.
104Ibid., loc. cit.
105Ibid.
106Ibid.
107Communication No. 49/1979, D. Marais, Jr. v. Madagascar (Views adopted on 24 March 1983), UN doc.
GAOR, A/38/40,
p. 148, para. 17.3 and p. 149, para. 19.
representation for the first four days of his trial, at the end of which a death
sentence
was imposed.108
In numerous cases brought against Uruguay in the 1970s and the beginning of
the 1980s this particular provision was violated, among others, and common
features of
these cases were that the authors had been arrested and detained on suspicion
of being
involved in subversive or terrorist activities, held incommunicado for long
periods,
subjected to torture or other ill-treatment and subsequently tried and convicted
by
military courts.109 Article 14(3)(b) was also violated in the case of Wight against
Madagascar, who was “kept incommunicado without access to legal counsel”
during a
ten-month period “while criminal charges against him were being investigated
and
determined”.110 Further, in the case of Peñarrieta et al., the Committee
concluded that
article 14(3)(b) had been violated because the authors had had no access to
legal counsel
“during the initial 44 days of detention”, i.e. when they were kept
incommunicado
following their arrest.111
Incommunicado detention that lasts for weeks or even months is a particularly
serious violation of the right to respect for several human rights, among them
the right
to prepare one’s defence. However, even brief periods of incommunicado
detention may
have serious adverse effects on the detained person’s rights, including his right
to
defend himself, and, as stated by the Human Rights Committee, provisions
should
therefore “also be made against incommunicado detention”.112
Access to documents: With regard to access to documents by the accused
and/or his or her legal counsel, the Committee has specified that article 14(3)(b)
“does
not explicitly provide for a right of a charged person to be furnished with copies
of all
relevant documents in a criminal investigation, but does provide that he shall
‘have
adequate time and facilities for the preparation of his defence and to
communicate with
counsel of his own choosing’”. In one case the author had been able, for almost
two
months prior to the court hearing of his case, either “personally or through his
lawyer”,
to examine “documents relevant to his case at the police station”, although he
had
chosen “not to do so, but requested that copies of all documents be sent to
him”.
Article 14(3)(b) of the Covenant had not, consequently, been violated in this
case.113
Furthermore, according to the Committee’s case-law, “the right to fair trial
does not entail that an accused who does not understand the language used in
Court,
has the right to be furnished with translations of all relevant documents in a
criminal
investigation, provided that the relevant documents are made available
to his
Lawyers 247
108Communication No. 676/1996, A. S. Yasseen and N. Thomas v. Guyana (Views adopted on 30 March
1998), UN doc. GAOR,
A/53/40 (vol. II), p. 161, para. 7.8.
109See, for example, Communication No. R.13/56, L. Celiberti de Casariego v. Uruguay (Views adopted on
29 July 1981), UN doc.
GAOR, A/36/40, p. 188, para. 11; Communication No. 43/1979, A. D. Caldas v. Uruguay (Views adopted on
21 July 1983), UN doc.
GAOR, A/38/40, p. 196, para. 14; and Communication No. R.17/70, M. Cubas Simones v. Uruguay (Views
adopted on 1 April 1982),
UN doc. GAOR, A/37/40, pp. 177-178, para. 12.
110Communication No. 115/1982, J. Wight v. Madagascar (Views adopted on 1 April 1985), UN doc. GAOR,
A/40/40, p. 178,
para. 17.
111Communication No. 176/1984, L. Peñarrieta et al. v. Bolivia (Views adopted on 2 November 1987), UN
doc. GAOR, A/43/40,
p. 207, para. 16.
112General Comment No. 20 on article 7, United Nations Compilation of General Comments, p. 140, para.
11.
113Communication No. 158/1983, O. F. v. Norway (decision adopted on 26 October 1984), UN doc. GAOR,
A/40/40, p. 211,
para. 5.5.
counsel”.114 Where a British citizen tried in Norway had aNorwegian lawyer of
his own
choice, who had access to the entire file and who had moreover the assistance of
an
interpreter in his meetings with the author, neither the right to a fair trial in
article 14(2)
nor the right to have adequate facilities to prepare his defence as provided by
article
14(3)(b) was violated. An additional factor in this case was that if the lawyer had
considered that he had not enough time to familiarize himself with the file, he
could
have requested an adjournment, which he did not do.115
*****
Article 8(2)(c) of the American Convention on Human Rights was violated in
the case of Castillo Petruzzi et al. where “the conditions under which the defence
attorneys had to operate were wholly inadequate for a proper defence, as they
did not
have access to the case file until the day before the ruling of first instance was
delivered”. In the view of the Inter-American Court of Human Rights, “the effect
was
that the presence and participation of the defence attorneys were mere
formalities”, and
consequently, it could “hardly be argued that the victims had adequate means of
defence”.116
An accused person must always have adequate time and facilities to
prepare his or her defence, including effective access to documents and
other evidence which are essential for his or her defence.
Incommunicado detention interferes with the right to ensure an efficient
defence and should be outlawed.
Without being exhaustive, this chapter has described some of the essential
human rights that must be guaranteed during pre-trial investigation into criminal
activities. These comprise a number of rights essential to preserving not only a
suspect’s
physical and mental integrity, but also his or her right to secure an effective
defence
throughout these early proceedings and subsequently during the trial itself. In
order for
these rights to be effectively realized, all legal professions, that is to say, judges,
prosecutors and lawyers alike, have an essential role to play. The police and
prosecutorial authorities have a professional duty under international law to
protect
these rights, as do the domestic judges, who must at all times be alert to any
sign that
such important rights as the right to freedom from torture, the right to effective
access
to legal counsel, the right not to be compelled to testify against oneself and the
right to
114Communication No. 526/1993, M. and B. Hill v. Spain (Views adopted on 2 April 1997), UN doc. GAOR,
A/52/40 (vol. II),
115Communication No. 451/1991, B. S. Harvard v. Norway (Views adopted on 15 July 1994), UN doc. GAOR,
A/49/40 (vol. II),
p. 154, para. 9.5.
para. 141.
prepare an effective defence have not been respected. Add to these rights the
basic
rights to equality before the law and to presumption of innocence, and it can be
concluded that international human rights law provides an important foundation
for
the creation of a judicial system that will function on the basis of respect for the
rule of
law and individual rights, for the ultimate purpose of administering justice fairly
and
efficiently.
Lawyers 249
.........Chapter 7
THE RIGHT TO A FAIR
TRIAL: PART II – FROM
TRIAL TO FINAL
JUDGEMENT .........................
Learning Objectives
_ To familiarize course participants with some of the international legal
rules
concerning the rights of persons charged with criminal offences
throughout the trial
stage, and the application of these rules by international monitoring
organs;
_ To sensitize participants to the importance of applying these legal rules
in order to
protect a broad range of human rights in a society based on the rule of
law;
_ To create an awareness among the participating judges, prosecutors and
lawyers of
their primordial role in enforcement of the rule of law, including the right
to a fair
trial in all circumstances, including crisis situations.
Questions
_ Are you already conversant with the international legal rules relating to a
fair trial?
_ Do these rules already form part of the national legal system within
which you are
working?
_ If so, what is their legal status and have you ever been able to apply
them?
_ In the light of your experience, do you have any particular concerns – or
have you
experienced any specific problems – when ensuring a person’s human
rights at the
pre-trial or trial stage?
_ If so, what were these concerns or problems and how did you address
them, given the
legal framework within which you work?
Lawyers 251
Chapter 7 • The Right to a Fair Trial: Part II – From Trial to Final Judgement
Questions (cont.d)
_ Which issues would you like to have specifically addressed by the
facilitators/trainers
during this course?
_ Would you have any advice to give to judges, prosecutors and lawyers
exercising their
professional responsibilities in difficult situations, in order to help them
secure the
application of fair trial rules?
_ International Covenant on Civil and Political Rights, 1966
_ Statute of the International Criminal Court, 1998
*****
_ Guidelines on the Role of Prosecutors, 1990
_ Basic Principles on the Role of Lawyers, 1990
_ African Charter on Human and Peoples’ Rights, 1981
_ American Convention on Human Rights, 1969
_ European Convention on Human Rights, 1950
1. Introduction
This chapter, which is a logical continuation of Chapter 6, which dealt with
some of the fundamental human rights that must be guaranteed at the stage of
criminal
investigations, will be devoted to the international legal rules that apply to the
trial stage.
It will also deal with some important related issues, such as the limits on
punishment, the right to appeal, the right to compensation in the event of
miscarriage
of justice, and the question of fair trial and special tribunals. A brief reference will
also
be made to the right to a fair trial in public emergencies, a subject that will be
considered
in further depth in Chapter 16.
What is important to bear in mind throughout this chapter, however, are the
two fundamental rules that were dealt with in Chapter 6, namely, the right to
equality
before the law and the right to presumption of innocence, which also
condition the
trial proceedings from their beginning to the delivery of the final judgement.
Lastly, some issues considered in Chapter 6 will again surface in the present
chapter, owing to the fact that the pre-trial and trial stages are intrinsically
linked.
However, overlapping has been kept to a strict minimum.
2. The Legal Provisions
The major legal provisions on fair trial are to be found in article 14 of the
International Covenant on Civil and Political Rights, article 7 of the African
Charter on
Human and Peoples’ Rights, article 8 of the American Convention on Human
Rights
and article 6 of the European Convention on Human Rights. The relevant
provisions
of these articles will be dealt with below under the appropriate headings.
Additional
rules to which reference will be made below are, among others, the Guidelines
on the
Role of Prosecutors, the Basic Principles of the Role of Lawyers and the Statutes
of the
International Criminal Court and the International Criminal Tribunals for Rwanda
and
the former Yugoslavia.
3. Human Rights during Trial
3.1 The right to be tried by a competent,
independent and impartial tribunal established
by law
The right to be tried by an independent and impartial tribunal must be applied
at all times and is a right contained in article 14(1) of the International Covenant
on
Civil and Political Rights, which provides that “in the determination of any
criminal
charge against him, or of his rights and obligations in a suit at law, everyone
shall be
Lawyers 253
entitled to a fair and public hearing by a competent, independent and
impartial
tribunal established by law”(emphasis added). Although article 7(1) of the
African
Charter on Human and Peoples’ Rights speaks only of a “competent” (art. 7(1)
(b)) or
“impartial” (art. 7(1)(d)) court or tribunal, article 26 of the Charter imposes a
legal duty
on the States parties also “to guarantee the independence of the Courts”. Article
8(1) of
the American Convention refers to “a competent, independent, and impartial
tribunal,
previously established by law”, and article 6(1) of the European Convention on
Human
Rights to “an independent and impartial tribunal established by law”. Lastly,
article 40
of the Statute of the International Criminal Court provides that “the judges shall
be
independent in the performance of their functions” and that they “shall not
engage in
any activity which is likely to interfere with their judicial functions or to affect
confidence in their independence”. However, since the question of independence
and
impartiality of tribunals is considered in some depth in Chapter 4, it will not be
further
examined here.
3.2 The right to a fair hearing
The notion of a “fair” hearing is contained both in article 14(1) of the
International Covenant on Civil and Political Rights and in article 6(1) of the
European
Convention on Human Rights, while article 8(1) of the American Convention on
Human Rights speaks of “due guarantees” (emphasis added). The African
Charter on
Human and Peoples’ Rights provides no specification in this respect, but it should
be
pointed out that, according to article 60 of the Charter, the African Commission
on
Human and Peoples’ Rights “shall draw inspiration” from other international
instruments for the protection of human and peoples’ rights, a provision that
enables
the Commission to be inspired, inter alia, by the provisions of article 14 of the
International Covenant on Civil and Political Rights when interpreting the trial
guarantees laid down in article 7 of the Charter. Articles 20(2) and 21(2) of the
respective Statutes of the International Criminal Tribunals for Rwanda and the
former
Yugoslavia both provide that the accused shall be entitled to a fair and public
hearing in
the determination of charges against him or her, although with the proviso that
the
protection of victims and witnesses may require measures which “shall include,
but
shall not be limited to, the conduct of in camera proceedings and the protection
of the
victim’s identity” (arts. 21 and 22 of the respective Statutes). The rights of the
accused
as contained in these Statutes are heavily inspired by article 14 of the
International
Covenant.
*****
With regard to the minimum guarantees contained in article 14(3) of the
Covenant with respect to criminal proceedings, the Human Rights Committee
has
pointed out in General Comment No. 13 that their observance “is not always
sufficient
to ensure the fairness of a hearing as required by paragraph 1”1 of article 14,
which may
thus impose further obligations on the States parties. In particular, when it
comes to
cases in which a capital sentence may be imposed, “the obligation of States
parties to
observe rigorously all the guarantees for a fair trial set out in article 14 of the
Covenant
admits of no exception”.2
Below, a few examples from universal and regional jurisprudence will show
the diversity of situations in the course of trial proceedings that may amount to a
violation of the right to a fair hearing. More details as to the fairness of hearings
will be
given in subsection 3.2.2 regarding “The right to equality of arms and adversarial
proceedings”.
The right to a fair trial in article 14(1) of the Covenant was violated in a case
where the trial court failed “to control the hostile atmosphere and pressure
created by
the public in the court room, which made it impossible for defence counsel to
properly
cross-examine the witnesses and present” the author’s defence. Although the
Supreme
Court referred to this issue, it “failed to specifically address it when it heard the
author’s
appeal”.3 The right to a fair trial under article 14(1) was further violated in a case
where
the prosecutor entered a nolle prosequi plea in a trial after the author had
pleaded guilty to
manslaughter. The Committee considered that, in the circumstances of the case,
the
“purpose and effect” of the nolle prosequi “were to circumvent the
consequences” of the
author’s guilty plea, in that rather than using it to discontinue the proceedings
against
the author, it enabled the prosecution to bring a fresh prosecution against the
author
immediately on exactly the same charge.4
*****
Lawyers 255
2Communication No. 272/1988, A. Thomas v. Jamaica (Views adopted on 31 March 1992), in UN doc. GAOR,
A/47/40, p. 264,
para. 13.l; emphasis added.
3Communication No. 770/1997, Gridin v. Russian Federation (Views adopted on 20 July 2000), in UN doc.
GAOR, A/55/40 (vol.
II), p. 176, para. 8.2. The author alleged inter alia that the court room was crowded with people who were
screaming that he should be
sentenced to death; ibid., p. 173, para. 3.5.
4Communication No. 535/1993, L. Richards v. Jamaica (Views adopted on 31 March 1997), in UN doc. GAOR,
A/52/40 (vol. II),
p. 43, para. 7.2.
The “Street Children” case:
Fairness from the point of view of the victims
The so-called “Street Children” case against Guatemala concerned the abduction,
torture and murder of four “street children”, the killing of a fifth, and the failure of
State mechanisms to deal appropriately with these violations and provide the victims’
families with access to justice. Criminal proceedings were instituted but nobody was
punished for the crimes committed. The Inter-American Court of Human Rights
concluded that the relevant facts constituted a violation of article 1(1) of the
American Convention on Human Rights “in relation to its article 8”, since the State
had “failed to comply with the obligation to carry out an effective and adequate
investigation of the corresponding facts”, i.e. the abduction, torture and murder of
the victims.5 According to the Court, the domestic proceedings had “two types of
serious defect”: first, “investigation of the crimes of abduction and torture was
completely omitted”, and, second, “evidence that could have been very important for
the due clarification of the homicides was not ordered, practised or evaluated”.6 It
was thus “evident” that the domestic judges had “fragmented the probative material
and then endeavoured to weaken the significance of each and every one of the
elements that proved the responsibility of the defendants, item by item”, and that this
contravened “the principles of evaluating evidence, according to which, the evidence
must be evaluated as a whole, ... taking into account mutual relationships and the way
in which some evidence supports or does not support other evidence”.7 In this case
the Court also importantly emphasized that
“it is evident from article 8 of the Convention that the victims of human
rights violations or their next of kin should have substantial possibilities of
being heard and acting in the respective proceedings, both in order to clarify
the facts and punish those responsible, and to seek due reparation”.8
As can be seen, the due process guarantees thus also condition the very procedure
whereby domestic authorities investigate and prosecute human rights violations.
*****
The right to be heard in person: The right to a fair trial as guaranteed by
article 6(1) of the European Convention on Human Rights was violated in the
case of
Botten, where the Supreme Court of Norway gave a new judgement, convicting
and
sentencing the applicant, in spite of not having summoned or heard him in
person. This
was so, although the proceedings before the Court had included a public hearing
at
which the applicant was represented by counsel. In the view of the European
Court, the
“Supreme Court was under a duty to take positive measures” to “summon the
applicant
and hear evidence from him directly before passing judgement”.9
5I-A Court HR, Villagrán Morales et al. Case (The “Street Children” Case) v. Guatemala, judgment of
November 19, 1999, Series C, No. 63,
p. 198, para. 233.
6Ibid., p. 196, para. 230; for more details see ibid., pp. 196-198, paras. 231-232.
7Ibid., p. 198, para. 233.
8Ibid., p. 195, para. 227.
9Eur. Court HR, Case of Botten v. Norway, judgment of 19 February 1996, reports 1996-I, p. 145, para. 53.
The right to a fair trial was further violated in the Bricmont case, where the
applicant had been convicted on several criminal charges with the Court of
Appeal
relying on accusations of the civil party, a member of the royal family, who had
joined
the criminal prosecution in order to seek damages. However, on some of the
charges on
which the Court of Appeal found the applicant guilty, the latter was convicted
after
proceedings which violated his defence rights as guaranteed by article 6; indeed,
the
applicant had had no “opportunity, afforded by an examination or a
confrontation, to
have evidence taken from the complainant, in his presence, on all the charges”,
there
having been confrontation only in respect of one count.10
The right to a fair trial can be violated in many ways, but as a general
principle it has always to be borne in mind that the accused person must
at all times be given a genuine possibility of answering charges,
challenging evidence, cross-examining witnesses, and doing so in a
dignified atmosphere.
Failures and shortcomings at the stage of criminal investigations may
seriously jeopardize the right to fair trial proceedings and thereby also
prejudice the right to be presumed innocent.
3.2.1 The right of access to a court or tribunal
With regard to the right of access to the courts, the European Court of
Human Rights has ruled that article 6(1) “secures to everyone the right to have
any
claim relating to his civil rights and obligations brought before a court or
tribunal”;
where a prisoner was refused permission by the United Kingdom Home Secretary
to
consult a solicitor in order to bring a civil action for libel against a prison officer,
this
refusal constituted a violation of the applicant’s “right to go before a court as
guaranteed by” article 6(1).11 The same issue arose in the case of Campbell and
Fell where
the applicants complained of a delay by the prison authorities in granting them
permission to seek legal advice for injuries they had sustained during an incident
in a
prison. Although they were eventually granted the permission they sought, the
Court
emphasized that “for evidentiary and other reasons speedy access to legal
advice is
important in personal-injury cases” and that “hindrance, even of a temporary
character,
may contravene the Convention”.12
It is also of interest to point out that in cases where administrative authorities
decide administrative offences which amount to a “criminal charge” under article
6(1)
of the European Convention – such as cases of speeding on motorways – and, if
the
decisions taken by the administrative authorities do not themselves satisfy the
requirements of article 6(1) of the Convention, they “must be subject to
subsequent
control by a ‘judicial body that has full jurisdiction’”.13 This means that the
judicial body
must have “the power to quash in all respects, on questions of law and fact”,
the
Lawyers 257
10Eur. Court HR, Bricmont Case, judgment of 7 July 1989, Series A, No. 158, pp. 30-31, paras. 84-85.
11Eur. Court HR, Golder Case v. the United Kingdom, judgment of 21 February 1975, Series A, No. 18, p. 18,
para. 36 and p. 19, para. 40 at
p. 20.
12Eur. Court HR, Case of Campbell and Fell, judgment of 28 June 1984, Series A, No. 80, p. 46, para. 107.
13Eur. Court HR, Case of Palaoro v. Austria, judgment of 23 October 1995, Series A, No. 329-B, p. 40, para.
41.
decision of the lower authority.14 If in these circumstances a Constitutional Court
can
examine only points of law, it does not fulfil the requirements of article 6(1), and,
similarly, if the Administrative Court has no power to quash the decision “on
questions
of fact and law”, it cannot, in the view of the European Court, be considered as a
“tribunal” for the purposes of article 6(1).15
In numerous other cases which will not be examined here, the European
Court has also found a violation of the right of access to courts to have one’s civil
rights
and obligations, including property rights and the right of access to one’s child,
determined.16
Lastly, it should briefly be recalled here that the right of access to the courts
also means, for instance, that men and women must have equal access thereto
and that
this equality might require the granting of legal aid for the purposes of securing
the
effectiveness of this right (cf. case-law under art. 14(1) of the International
Covenant
and art. 6(1) of the European Convention as explained in Chapter 6).17
The right of access to the courts means that no one must be hindered
either by law, administrative procedures or material resources from
addressing himself or herself to a court or tribunal for the purpose of
vindicating his or her rights.
Women and men are entitled to equal access to the courts.
3.2.2 The right to equality of arms and adversarial proceedings
The notion of equality of arms is an essential feature of a fair trial, and is an
expression of the balance that must exist “between the prosecution and the
defence”.18
With regard to the concept of “fair trial” in article 14(1) of the International
Covenant,
the Human Rights Committee has explained that it “must be interpreted as
requiring a
number of conditions, such as equality of arms and respect for the principle of
adversary proceedings”, and that “these requirements are not respected
where ... the
accused is denied the opportunity personally to attend the proceedings, or where
he is
unable properly to instruct his legal representative”. In particular, “the principle
of
equality of arms is not respected where the accused is not served a properly
motivated
indictment”.19
*****
15Ibid., loc. cit.
16Eur. Court HR, Case of Allan Jacobsson v. Sweden, judgment of 25 October 1989, Series A. No. 163, pp.
19-21, paras. 65-77 (property
right); and Eur. Court HR, Case of Eriksson v. Sweden, judgment of 22 June 1989, Series A, No. 156, pp. 27-
29, paras. 73-82 and p. 31,
paras. 90-92 (question of access to children) .
17See also Chapter 15 of this Manual with regard to the availability of effective domestic remedies for
violations of human rights
and fundamental freedoms.
18Communication No. 307/1988, J. Campbell v. Jamaica (Views adopted on 24 March 1993), in UN doc.
p. 44, para. 6.4.
A/47/40,
pp. 289-290, para. 6.6.
The African Commission on Human and Peoples’ Rights has held that “the
right to fair trial involves fulfilment of certain objective criteria, including the
right to
equal treatment, the right to defence by a lawyer, especially where this is called
for by
the interests of justice, as well as the obligation on the part of courts and
tribunals to
conform to international standards in order to guarantee a fair trial to all”. The
Commission added that “the right to equal treatment by a jurisdiction,
especially in
criminal matters, means, in the first place, that both the defence and the public
prosecutor shall have equal opportunity to prepare and present their pleas and
indictment during the trial”. They must, in other words, be able to “argue their
cases ...
on an equal footing”. Secondly, “it entails the equal treatment of all accused
persons by
jurisdictions charged with trying them”. Although “this does not mean that
identical
treatment should be meted out to all accused”, the response of the Judiciary
should be
similar “when objective facts are alike”.20 Where, in a death penalty case, the
Ngozi
Court of Appeal in Burundi refused to accede to the accused person’s plea for an
adjournment of the proceedings in the absence of a lawyer, although it had
earlier
accepted an adjournment requested by the prosecutor, the African Commission
concluded that the Court of Appeal had “violated the right to equal treatment,
one of
the fundamental principles of a right to a fair trial”.21
*****
The European Court of Human Rights has explained the principle of equality
of arms as “one of the features of the wider concept of a fair trial” as understood
by
article 6(1) of the European Convention, which implies that “each party must be
afforded a reasonable opportunity to present his case under conditions that do
not
place him at a disadvantage vis-à-vis his opponent”; in this context, “importance
is
attached to appearances as well as to the increased sensitivity to the fair
administration
of justice”.22
The principle of equality of arms was thus violated where, in his observations
to the Supreme Court, the Attorney-General had stated that he opposed the
applicant’s
appeal; these observations were never served on the defence, which could not
comment on them.23 The European Court noted that “the principle of the equality
of
arms does not depend on further, quantifiable unfairness flowing from a
procedural
inequality”, and that “it is a matter for the defence to assess whether a
submission
deserves a reaction. It is therefore unfair for the prosecution to make
submissions to a
court without the knowledge of the defence”.24
However, rather than referring to the principle of equality of arms, the
European Court has sometimes instead emphasized the right to adversarial
proceedings in both criminal and civil proceedings, a right which “means
in
principle the opportunity for the parties to a criminal or civil trial to have
knowledge of
Lawyers 259
20ACHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication No.
231/99, decision adopted during the 28th
Ordinary session, 23 October – 6 November 2000, paras. 26-27 of the text of the decision as published at
http://www1.umn.edu/humanrts/africa/comcases/231-99.html (emphasis added).
21Ibid., para. 29.
22Eur. Court HR, Case of Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 359, para. 47.
23Ibid., para. 49.
24Ibid., pp. 359-360, para. 49.
and comment on all evidence adduced or observations filed, even by an
independent
member of the national legal service, with a view to influencing the court’s
decision”.25
In the words of the Court, “various ways are conceivable in which national law
may
secure that this requirement is met”, but “whatever method is chosen, it
should
ensure that the other party will be aware that observations have been
filed and
will get a real opportunity to comment thereon”.26
Consequently, in the Lobo Machado case, which concerned proceedings
regarding social rights, the Deputy Attorney-General advocated in an opinion – to
which the applicant had no access – that the appeal to the Supreme Court be
dismissed;
this constituted a breach of article 6(1) which was “aggravated by the presence
of the
Deputy Attorney-General at the Supreme Court’s private sitting”.27
The case of Brandstetter
In the case of Brandstetter, which concerned defamation proceedings, the Vienna
Court of Appeal had relied on submissions of the Senior Public Prosecutor which
had not been sent to the applicant and of which he and his lawyer were not even
aware. For the Court, it did not help in this case that the Supreme Court had
subsequently quashed the relevant appeal court judgement: in its view an “indirect
and purely hypothetical possibility for an accused to comment on prosecution
arguments included in the text of a judgement can scarcely be regarded as a proper
substitute for the right to examine and reply directly to submissions made by the
prosecution”. Furthermore, “the Supreme Court did not remedy this situation by
quashing the first judgment since its decision was based on a ground entirely
unrelated to the matter in issue”.28
The right to equality of arms or the right to truly adversarial
proceedings in civil and criminal matters forms an intrinsic part of
the right to a fair hearing and means that there must at all times be a
fair balance between the prosecution/plaintiff and the defence. At no
stage of the proceedings must any party be placed at a disadvantage
vis-à-vis his or her opponent.
25Eur. Court HR, Case of Lobo Machado v. Portugal, judgment of 20 February 1996, Report 1996-I, para. 31
at p. 207.
26Eur. Court HR, Case of Brandstetter v. Austria, judgment of 28 August 1991, Series A, No. 211, pp. 27-28,
27Eur. Court HR, Case of Lobo Machado v. Portugal, judgment of 20 February 1996, Report 1996-I, pp. 206-
207, paras. 31-32.
28Eur. Court HR, Case of Brandstetter v. Austria, judgment of 28 August 1991, Series A, No. 211, p. 28,
para. 68.
3.2.3 The detention of witnesses
The question of equality of arms arose under article 14 of the International
Covenant in the case of Campbell, where the author complained that he had not
had a
fair trial and where his ten-year-old son had been detained to ensure that he
would
testify. The author was charged with assaulting his wife in connection with a
marital
dispute, and at the trial his son at first testified that he had not seen his father.
According to the account given by the author, his son did not change his story,
and at
the end of the first day of the trial he was therefore taken to the police station,
where he
stayed overnight. The next day, he finally “allegedly broke down and testified
against his
father”.29 However, after the end of the court proceedings, the son retracted his
testimony in a written statement.
For the Human Rights Committee this was “a grave allegation”, and it
emphasized “that the detention of witnesses in view of obtaining their testimony
is an
exceptional measure, which must be regulated by strict criteria in law and in
practice”.30
In this case it was “not apparent from the information ... that special
circumstances
existed to justify the detention of the author’s minor child”, and, moreover, “in
the light
of his retraction, serious questions” arose “about possible intimidation and about
the
reliability of the testimony obtained under these circumstances”. The Committee
therefore concluded that “the author’s right to a fair trial was violated”.31
Under article 14(1) of the International Covenant it is only lawful to
resort to the detention of witnesses in exceptional circumstances. It is
uncertain to what extent such a measure would be acceptable under the
other treaties.
3.2.4 Judge’s instructions to the jury
Several cases brought before the Human Rights Committee have concerned
the alleged inadequacy of judges’ instructions to the jury. In these cases the
Committee
has consistently held that “it is generally for the appellate courts of States
parties to the
Covenant to evaluate facts and evidence in a particular case”, and it is not,
therefore, “in
principle”, for it
“to review specific instructions to the jury by the judge in a trial by jury,
unless it can be ascertained that the instructions to the jury were
clearly arbitrary or amounted to a denial of justice, or that the judge
manifestly violated his obligation of impartiality”.32
Lawyers 261
29Communication No. 307/1988, J. Campbell v. Jamaica (Views adopted on 24 March 1993), in UN doc.
p. 42, para. 2.3.
30Ibid., p. 44, paras. 6.3-6.4.
31Ibid., p. 44, para. 6.4.
32Communications Nos. 226/1987 and 256/1987, M. Sawyers and M. and D. McLean v. Jamaica (Views
in UN doc. GAOR, A/46/40, p. 233, para. 13.5; emphasis added.
The Committee has however observed that “the judge’s instructions to the
jury must meet particularly high standards as to their thoroughness and
impartiality in
cases in which a capital sentence may be pronounced on the accused”, and that
“this
applies, a fortiori, to cases in which the accused pleads legitimate self-
defence”.33
In most cases the Committee has found no evidence that the trial judge’s
instructions were arbitrary to the extent of amounting to a denial of justice,34 in
particular when it appears clear that “the trial judge put the respective versions
of the
prosecution and the defence fully and fairly to the jury”.35 However, in the case
of
Wright, who was convicted and sentenced to death for murder, the judge’s
omission was
so serious as to amount to a denial of justice contrary to article 14(1) of the
Covenant.
In this case, a post-mortem showed that the shot from which the victim died had
in fact
been fired at a time when the author was already in police custody; this expert
conclusion was not challenged and was available to the court.36 Given “the
seriousness
of its implications”, the Committee was of the view that the Court should have
brought
this information “to the attention of the jury, even though it was not mentioned
by
counsel”.37
In trials by jury, the judge’s instruction to the jury must be impartial and
fair in that both the case of the prosecutor and that of the defence must
be
presented in such a way as to ensure the right to a fair hearing, which
must be free from arbitrariness. A violation of this essential duty
amounts to a denial of justice.
3.3 The right to a public hearing
The right to a public hearing in both civil and criminal cases is expressly
guaranteed both by article 14(1) of the International Covenant on Civil and
Political
Rights and by article 6(1) of the European Convention on Human Rights,
although the
press and public “may be excluded from all or part of” a trial for certain specified
reasons, namely, in the interest of morals, public order or national security in a
democratic society, in the interest of the parties’ private lives, or where the
interest of
justice otherwise so requires. To this the European Convention also specifically
adds
“the interest of juveniles” as a ground for holding court proceedings in camera.
Article
8(5) of the American Convention on Human Rights provides this right only with
regard
to criminal proceedings, which “shall be public, except insofar as may be
necessary to
protect the interests of justice”. Rule 79(A) in the identical versions of the Rules
of
33Communication No. 232/1987, D. Pinto v. Trinidad and Tobago (Views adopted on 20 July 1990), in UN
doc. GAOR A/45/40
(vol. II), p. 73, para. 12.3.
34See e.g. ibid., loc. cit. and Communication No. 283/1988, A. Little v. Jamaica (Views adopted on 1
November 1991), in UN doc.
GAOR, A/47/40, p. 282, para. 8.2.
doc. GAOR A/45/40
(vol. II), p. 73, para. 12.4.
36Communication No. 349/1989, C. Wright v. Jamaica (Views adopted on 27 July 1992), in UN doc. GAOR,
A/47/40, p. 315,
para. 8.3.
37Ibid., loc. cit.
Procedure and Evidence of the International Criminal Tribunals for Rwanda and
the
former Yugoslavia also refers to the possibility of the Trial Chamber going into
closed
session for reasons of public order or morality, safety, security or non-disclosure
of the
identity of a victim or witness as provided in Rule 75, or for the protection of the
interests of justice. However, “the Trial Chamber shall make public the reasons
for its
order” (Rule 79(B)).
In General Comment No. 13, on article 14 of the Covenant, the Human
Rights Committee emphasized that “the publicity of hearings is an important
safeguard
in the interest of the individual and of society at large”. Apart from the
“exceptional
circumstances” provided for in article 14(1), “ a hearing must be open to the
public in
general, including members of the press, and must not, for instance, be limited
only to a
particular category of persons”.38 Notwithstanding the non-publicity of the trial
itself,
“the judgement must, with certain strictly defined exceptions, be made public”
under
article 14 of the Covenant.39
The duty to hold suits of law in public under article 14(1) is incumbent on the
State, and “is not dependent on any request, by the interested party ... Both
domestic
legislation and judicial practice must provide for the possibility of the public
attending,
if members of the public so wish”.40 This duty further implies that
“Courts must make information on time and venue of the oral hearings
available to the public and provide for adequate facilities for the attendance
of interested members of the public, within reasonable limits, taking into
account, e.g., the potential public interest in the case, the duration of the
oral hearing and the time the formal request for publicity has been made.
Failure of the court to make large courtrooms available does not constitute
a violation of the right to a public hearing, if in fact no interested member
of the public is barred from attending an oral hearing.”41
The principle of publicity means that trials taking place in secret are contrary
to article 14(1), such as in the case of eight former Zairian parliamentarians and
one
businessman whose trial – among other shortcomings – was not held in public
and who
were sentenced to fifteen years’ imprisonment, with the exception of the
businessman,
who received a five-year prison sentence.42
Article 14(1) has naturally been violated in cases where the hearing has taken
place in camera when the State party has failed to justify this measure in
accordance with
the terms of the Covenant.43
*****
Lawyers 263
38United Nations Compilation of General Comments, pp. 123-124, para. 6.
40Communication No. 215/1986, G. A. van Meurs v. the Netherlands (Views adopted on 13 July 1990), in UN
doc. GAOR,
A/45/40 (vol. II), p. 59, para. 6.1.
41Ibid., p. 60, para. 6.2.
42Communication No. 138/1983, N. Mpandanjila et al. v. Zaire (Views adopted on 26 March 1986), in UN
doc. GAOR, A/41/40,
p. 126, para. 8.2.
43Communication No. 74/1980, M. A. Estrella v. Uruguay (Views adopted on 29 March 1983), in UN doc.
GAOR, A/38/40,
p. 159, para. 10.
The African Commission on Human and Peoples’ Rights has held that,
regardless of the fact that the right to a public trial is not expressly provided for
in the
African Charter, it is empowered by articles 60 and 61 of the Charter “to draw
inspiration from international law on human and peoples’ rights and to take into
consideration as subsidiary measures other general or special international
conventions,
customs generally accepted as law, general principles of law recognized by the
African
States as well as legal precedents and doctrine”. In support of the notion of
publicity of
hearings, the Commission then invoked the above-quoted terms of the Human
Rights
Committee’s General Comment No. 13 on article 14(1) of the Covenant.44 The
African
Commission next noted that the “exceptional circumstances” which might justify
exceptions to the principle of publicity under article 14(1) of the Covenant are
“exhaustive”.45 Where the respondent Government had made only “an omnibus
statement in its defence”, without specifying which exact circumstances
prompted it to
exclude the public from a trial, the Commission concluded that the right to a fair
trial as
guaranteed by article 7 of the African Charter had been violated.46
*****
The principle of public proceedings as guaranteed by article 8(5) of the
American Convention on Human Rights was at issue in the case of Castillo
Petruzzi et al.,
where “all the proceedings in the case, even the hearing itself, were held out of
the
public eye and in secret”, thus resulting in “a blatant violation of the right to a
public
hearing recognized in the Convention”; indeed, “the proceedings were
conducted on a
military base off limits to the public”.47
*****
Under article 6(1) of the European Convention, proceedings must, with the
exceptions mentioned above, be held in public. However, the application of this
provision “to proceedings before appellate courts depends on the special
features of
the proceedings involved”, and “account must be taken of the entirety of the
proceedings in the domestic legal order and of the role of the appellate court
therein”.48
The Court has thus consistently held that
“provided that there has been a public hearing at first instance, the absence
of ‘public hearings’ at a second or third instance may be justified by the
special features of the proceedings at issue. Thus proceedings for leave to
appeal or proceedings involving only questions of law, as opposed to
questions of fact, may comply with the requirements of Article 6 even
when the appellant was not given an opportunity of being heard in person
by the appeal or cassation court.”49
23 October – 6 November 2000, para. 51 of the text of the decision as published at
45Ibid., para. 52.
paras. 172-173
48Eur. Court HR, Case of Bulut v. Austria, judgment of 22 February 1996, Reports 1996-II, p. 357, para. 40.
49Ibid., p. 358, para. 41.
Applying this interpretation in the case of Bulut, the European Court found no
violation although the Supreme Court used summary proceedings unanimously
to
refuse consideration of an appeal for lacking merit. The European Court was not
satisfied that the grounds of nullity formulated by the applicant “raised questions
of fact
bearing on the assessment of [his] guilt or innocence that would have
necessitated a
hearing”.50 Nor did the absence of a public hearing violate article 6(1) in the
Axen case,
where the German Federal Court had decided to dispense with a hearing since it
unanimously considered the appeal on points of law to be ill-founded; before
taking its
decision it had however “duly sought the views of the parties”.51
The case of Weber
The right to a public hearing was however violated in the Weber case concerning
breach of confidentiality of judicial investigation, where the President of the Criminal
Cassation Division of the Vaud Cantonal Court in Switzerland – and then the
Cassation Division itself – gave a judgement without such a hearing. It was not
sufficient in this case that the subsequent proceedings in the Federal Court were
public, since that Court “could only satisfy itself that there had been no arbitrariness”
and was not competent to “determine all the disputed questions of fact and law”.52
3.3.1 The right to a public judgement
Article 14(1) in fine of the International Covenant provides that “any
judgement rendered in a criminal case or in a suit of law shall be made public
except
where the interest of juvenile persons otherwise requires or the proceedings
concern
matrimonial disputes or the guardianship of children”. Article 6(1) of the
European
Convention stipulates that judgement “shall be pronounced publicly”. Article 8(5)
of
the American Convention refers only to the publicity of the proceedings as such,
while
article 7 of the African Charter is silent on both issues. Articles 22(2) and 23(2) of
the
former
Yugoslavia provide for the delivery “in public” of the judgement of the Trial
Chamber.
Finally, according to article 74(5) of the Statute of the International Criminal
Court, the
“decisions or a summary thereof shall be delivered in open court”.
As observed by the European Court, the object pursued by article 6(1) with
regard to the publicity of judgements is “to ensure scrutiny of the judiciary
by the
public with a view to safeguarding the right to a fair trial”.53 However, the
Court
has not adopted a literal interpretation of the words “judgement shall be
pronounced
publicly” but has instead taken into account, in its case-law, the “long-standing
Lawyers 265
50Ibid., para. 42.
51Eur. Court HR, Case of Axen v. Federal Republic of Germany, judgment of 8 December 1983, Series A, No.
72, p. 12, para. 28.
52Eur. Court HR, Case of Weber v. Switzerland, judgment of 22 May 1990, Series A, No. 177, p. 20, para. 39.
53Eur. Court HR, Case of Pretto and Others v. Italy, judgment of 8 December 1983, Series A, No. 71, para.
27 at p. 13; emphasis added.
tradition” of many States of the Council of Europe in making public the decisions
of
some or all of their courts; such traditions may thus not necessarily imply the
reading
out loud of the judgements concerned, but can consist in depositing the
judgements in
a registry accessible to the public.54 The European Court considers, therefore,
“that in
each case the form of publicity to be given to the ‘judgement’ under the
domestic law of
the respondent State must be assessed in the light of the special features of the
proceedings in question and by reference to the object and purpose” of article
6(1).55
The case of Pretto and Others
In the case of Pretto and Others, where the Italian Court of Cassation had made a ruling
in civil proceedings which was not pronounced publicly, the European Court took
account “of the entirety of the proceedings conducted in the Italian legal order and of
the Court of Cassation’s role therein”, noting that its role was “confined to reviewing
in law the decision of the Venice Court of Appeal”. The Court of Cassation “could
not itself determine the suit, but only, on this occasion, dismiss the applicant’s appeal
or, alternatively, quash the previous judgment and refer the case back to the trial
court”.56 After holding public hearings, the Court of Cassation dismissed the appeal,
whereupon the Appeal Court’s judgement became final; the consequences for the
applicant remained unchanged. Although the judgement dismissing the appeal on
points of law was not delivered in open court, anyone could consult and obtain a
copy thereof on application to the court registry.57 In the opinion of the European
Court the object of article 6(1) to ensure public scrutiny of the Judiciary was
“at any rate as regards cassation proceedings, no less achieved by a
deposit in the court registry, making the full text of the judgement
available to everyone, than by a reading in open court of a decision
dismissing an appeal or quashing a previous judgement, such reading
sometimes being limited to the operative provisions”.58
It followed that the absence of public pronouncement of the Court of Cassation’s
judgement did not constitute a breach of article 6(1) of the Convention.59
54Ibid.,p. 12, paras. 25-26.
55Ibid.,para. 26.
56Ibid.,pp. 12-13, para. 27.
57Ibid.,para. 27 at p. 13.
58Ibid.,loc. cit.
59Ibid.,p. 13, para. 28. See also Eur. Court HR, Sutter case v. Switzerland, judgment of 22 February 1984,
Series A, No. 74, pp. 14-15,
paras. 31-34.
As a minimum, every person charged with a criminal offence has the
right to public proceedings in the court of first instance and at all levels of
appeal proceedings if the appeal concerns an assessment of both facts
and
law including the question of guilt.
A judgement in a criminal case must be made public except in
exceptional circumstances. At the appeal stage, the duty to make a public
pronouncement of judgements may in some cases be satisfied by making
the relevant judgements available to the public at the court registry
(Europe).
3.4 The right to be tried “without undue delay”
or “within a reasonable time”
According to article 14(3)(c) of the International Covenant and articles
20(4)(c) and 21(4)(c) of the respective Statutes of the International Criminal
Tribunals
for Rwanda and the former Yugoslavia, every person facing a criminal charge
shall have
the right “to be tried without undue delay” (emphasis added). In the words of
article
7(1)(d) of the African Charter, article 8(1) of the American Convention and article
6(1)
of the European Convention, everyone has the right to be heard “within a
reasonable
time” (emphasis added).
*****
What it means to be tried “without undue delay”: In General Comment
No. 13, the Human Rights Committee stated that the right to be tried without
undue
delay is a guarantee that “relates not only to the time by which a trial
should
commence, but also the time by which it should end and judgement be
rendered;
all stages must take place ‘without undue delay’. To make this right
effective, a
procedure must be available in order to ensure that the trial will proceed
‘without undue
delay’, both in first instance and on appeal.”60 This view has been further
emphasized in
the Committee’s jurisprudence, according to which article 14(3)(c) and (5) “are
to be
read together, so that the right to review of conviction and sentence must be
made
available without delay”.61
It is noteworthy that the Committee has also made it clear that “the difficult
economic situation” of a State party is not an excuse for not complying with the
Covenant, and it has emphasized in this respect “that the rights set forth in the
Covenant constitute minimum standards which all States parties have agreed to
observe”.62
Lawyers 267
61Communications Nos. 210/1986 and 225/1987, E. Pratt and I. Morgan v. Jamaica (Views adopted on 6
April 1989), in UN doc.
GAOR, A/44/40, p. 229, para. 13.3.
62Communication No. 390/1990, B. Lubuto v. Zambia (Views adopted on 31 October 1995), in UN doc.
GAOR, A/51/40
(vol. II), p. 14, para. 7.3.
It is in principle for the State party concerned to show that the complexity of a
case is such as to justify the delay under consideration by the Committee,63
although a
mere affirmation that the delay was not excessive is not sufficient;64 the
Committee will
also examine whether the delay, or part of it, can be attributed to the authors,
for
instance when they decide to change lawyers.65
The case of Pratt and Morgan
In the case of Pratt and Morgan, the authors were unable to proceed to appeal to the
Privy Council because it took the Court of Appeal almost three years and nine
months to issue a written judgement. The Committee did not accept the explanation
of the State party that this delay “was attributable to an oversight and that the authors
should have asserted their right to receive earlier the written judgement”; on the
contrary, it considered that the responsibility for this delay lay with the judicial
authorities, a responsibility that “is neither dependent on a request for production by
the counsel in a trial nor is non-fulfilment of this responsibility excused by the
absence of a request from the accused”.66 In reaching its conclusion that this delay
violated both article 14(3)(c) and (5), the Committee stated that “it matters not in the
event that the Privy Council affirmed the conviction of the authors”, since “in all
cases, and especially in capital cases, accused persons are entitled to trial and appeal
without undue delay, whatever the outcome of those judicial proceedings turns out to
be”.67
The Human Rights Committee has examined numerous other cases involving
alleged violations of this right, and only a few examples of its jurisprudence will
be
highlighted here. In one case, the Committee concluded that a delay of 29
months from
arrest to trial was contrary to article 14(3)(c); the mere affirmation by the State
party that
such a delay was not contrary to the Covenant did not constitute a sufficient
explanation.68 A delay of two years between arrest and trial was also
considered to
violate article 14(3)(c) (and article 9(3)) of the Covenant, and it was therefore
not
necessary for the Committee to “decide whether the further delays in the
conduct of
the trial [were] attributable to the State party or not”.69 A fortiori, proceedings
that have
63Communication No. 336/1988, A. Fillastre v. Bolivia (Views adopted on 5 November 1991), in UN doc.
GAOR, A/47/40,
p. 306, para. 6.6.
64Communication No. 639/1995, W. Lawson Richards and T. Walker v. Jamaica (Views adopted on 28 July
1997), in UN doc.
GAOR, A/52/40 (vol. II), p. 189, para. 8.2.
A/52/40 (vol. II),
p. 17, para. 12.4.
66Ibid., p. 230, para. 13.4.
68Communication No. 564/1993, J. Leslie v. Jamaica (Views adopted on 31 July 1998), in UN doc. GAOR,
A/53/40 (vol. II),
p. 28, para. 9.3.
69Communication No. 672/1995, C. Smart v. Trinidad and Tobago (Views adopted on 29 July 1998), in UN
doc. GAOR, A/53/40
(vol. II), p. 149, para. 10.2.
_
lasted six70 or about ten years 71 to complete have been considered to violate
article
14(3)(c). The outcome was the same in a case where there was a delay of 31
months
between conviction and appeal.72
On the other hand, a delay of eighteen months from the arrest to the opening
of the author’s trial for murder was not considered to constitute an “undue
delay” in the
case of Kelly, there being “no suggestion that pre-trial investigations could have
been
concluded earlier, or that the author complained in this respect to the
authorities”.73
However, in the same case, article 14(3)(c) and (5) was violated since it took the
Court
of Appeal almost five years to issue a written judgement, thereby effectively
preventing
the author from petitioning the Privy Council.74
In a case concerning the author’s request to be reinstated in the Guardia Civil
in Peru, a “seemingly endless sequence of instances and repeated failure to
implement
decisions” resulted in a delay of seven years that was considered
“unreasonable” by the
Committee, thereby violating “the principle of a fair hearing” in article 14(1) of
the
Covenant. This case was not considered under article 14(3)(c).75
*****
Under article 6(1) of the European Convention on Human Rights, the start of
the period to be taken into consideration can be the day a person is either
charged,
arrested, or committed for trial,76 for instance, and the end of this period is
normally
when the judgement acquitting or convicting the person or persons concerned
becomes final.77
On the question of reasonableness of the length of the proceedings, whether
civil or criminal, the European Court has consistently held that
“it is to be assessed in the light of the particular circumstances of the case,
regard being had to the criteria laid down in the Court’s case-law, in
particular the complexity of the case, the applicant’s conduct and that
of the competent authorities”.78
Lawyers 269
_
70Communication No. 159/1983, Cariboni v. Uruguay (Views adopted on 27 October 1987), in UN doc.
GAOR, A/43/40, p. 184
and pp. 189-190, paras. 9.2 and 10.
71Ibid., loc. cit.
72Communication No. 702/1996, C. McLawrence v. Jamaica (Views adopted on 18 July 1997), in UN doc.
GAOR, A/52/40
(vol. II), p. 232, para. 5.11.
73Communication No. 253/1987, P. Kelly v. Jamaica (Views adopted on 8 April 1991), in UN doc. GAOR,
A/46/40, p. 248, para.
5.11.
75Communication No. 203/1986, R. T. Muñoz Hermoza v. Peru (Views adopted on 4 November 1988), in UN
doc. GAOR,
A/44/40, p. 204, para.11.3.
76Eur. Court HR, Case of Kemmache v. France, judgment of 27 November 1991, Series A, No. 218, p. 27,
para. 59 (date of charge); and
Eur. Court HR, Case of Yagci and Sargin v. Turkey, judgment of 8 June 1995, Series A, No. 319-A, p. 20, para
58 (date of arrest); Eur. Court
HR, Case of Mansur v. Turkey, judgment of 8 June 1995, Series A, No. 319-B, p. 51, para. 60 (committal for
trial).
77See e.g. Eur. Court HR, Case of Yagci and Sargin v. Turkey, judgment of 8 June 1995, Series A, No. 319-A,
p. 20, para 58.
78Eur. Court HR., Case of Kemmache v. France, judgment of 27 November 1991, Series A, No. 218, p. 20,
para. 50 (criminal); and Eur.
Court HR, Martins Moreira Case v. Portugal, judgment of 26 October 1988, Series A, No. 143, p. 17, para. 45
(civil); emphasis added.
_
_
As to the conduct of the applicant, it is worthy of note that the European
Court has held that article 6 “does not require a person charged with a criminal
offence
to cooperate actively with the judicial authorities”, and that, further, it does not
blame
the applicant for taking “full advantage of the resources afforded by national law
in
their defence”, although this may slow down the proceedings to some extent.79
The
case might however be different if there is evidence showing that the applicant
and his
counsel have displayed a “determination to be obstructive”.80
The judicial authorities were, however, responsible for the unreasonable
delay of the proceedings contrary to article 6 in the case of Yagci and Sargin,
where,
contrary to national law, the courts had held only an average of one hearing per
month,
and where they waited for almost six months before acquitting the applicants on
the
basis of newly repealed articles of the Criminal Code which had constituted part
of the
basis of the criminal charges against them. In all, the proceedings lasted a little
less than
four years and eight months.81
It does not help in this respect that Governments invoke their international
responsibility to look carefully into all matters in serious cases of drug trafficking
in
order to justify delays. In this respect the Court has unequivocally held that it “is
for the
Contracting States to organize their legal systems in such a way that
their courts
can meet” the requirement of reasonableness.82
Similarly, in civil proceedings, it is no defence for the State concerned to argue
that its Code of Civil Procedure leaves the initiative to the parties, who are
expected to
carry out the procedural steps in the manner and within the time prescribed. The
European Court has held in this respect that such a rule does not “dispense the
courts
from ensuring compliance with Article 6 as to the ‘reasonable time’
requirement”.83
The national judge does, in other words, have an obligation to intervene when
necessary to expedite proceedings so as not to jeopardize the “effectiveness and
credibility” of the administration of justice.84
Every person charged with a criminal offence has the right to be tried
without undue delay/within a reasonable time. All States have a duty to
organize the Judiciary in such a way that this right can be effectively
ensured.
The accused cannot be blamed for delays caused by his or her making use
of the right not to speak or to cooperate with the judicial authorities.
Judicial delays can only be attributed to the accused in cases of deliberate
obstructive behaviour.
79Eur. Court HR, Case of Yagci and Sargin v. Turkey, judgment of 8 June 1995, Series A, No. 319-A, p. 21,
para. 66.
80Ibid., loc. cit.
81Ibid., p. 22, paras. 67-70.
82Eur. Court HR, Case of Mansur v. Turkey, judgment of 8 June 1995, Series A, No. 319-B, p. 53, para. 68;
emphasis added.
83Eur. Court HR, Vernillo Case v. France, judgment of 20 February 1991, Series A, No. 198, para. 30 at p. 13.
84Cf. ibid., p. 14, para. 38 read in conjunction with p. 14, para. 36. Owing inter alia “to the parties’
responsibilities in the conduct
of the trial” the relevant periods in this case were not so long as to constitute a violation of the requirement
of reasonableness, see
ibid., p. 15, para. 39.
3.5 The right to defend oneself in person or
through a lawyer of one’s own choice
Article 14(3)(d) of the International Covenant, article 7(1)(c) of the African
Charter on Human and Peoples’ Rights, article 8(2)(d) of the American
Convention on
Human Rights and article 6(3)(c) of the European Convention on Human Rights
all
guarantee the right of anyone charged with a criminal offence to defend himself
in
person or through legal assistance of his own choice. So do articles 20(4)(d) and
21(4)(d) of the respective Statutes of the International Criminal Tribunals for
Rwanda
and the former Yugoslavia.
*****
In its General Comment No. 13 on article 14, the Human Rights Committee
emphasized that
“the accused or his lawyer must have the right to act diligently and
fearlessly in pursuing all available defences and the right to challenge the
conduct of the case if they believe it to be unfair. When exceptionally for
justified reasons trials in absentia are held, strict observance of the rights of
the defence is all the more necessary”.85
The right of access to legal assistance must be effectively available, and, where
this has not been the case, the Human Rights Committee has concluded that
article
14(3) has been violated.86 This was the case where a person did not have access
to legal
assistance during the first ten months of his detention and, in addition, was not
tried in
his presence.87 Where the domestic law has not authorized the author to defend
himself
in person, the Committee has also found a violation of article 14(3)(d), which
allows the
accused to choose whether he or she wishes to defend him or herself – be it
through an
interpreter – or to have the defence conducted by a lawyer.88
The right to have a lawyer of one’s own choice was violated in the case of
López Burgos where the victim was obliged to accept the ex officio appointment
of a
colonel as his legal counsel.89 On the other hand, the right to choose under
article
14(3)(d) “does not entitle the accused to choose counsel provided free of
charge”, but,
in spite of this restriction, “measures must be taken to ensure that counsel, once
assigned, provides effective representation in the interest of justice”, this
including
“consulting with, and informing, the accused if he intends to withdraw an appeal
or to
argue, before the appellate instance, that the appeal has no merit”.90 Although
counsel
Lawyers 271
86See among many cases, Communication No. R.2/8, B. Weismann Lanza and A. Lanza Perdomo v. Uruguay
(Views adopted on
3 April 1980), in UN doc. GAOR, A/35/40, p. 118, para. 16; and Communication No. R.1/6, M. A. Millán
Sequeira v. Uruguay,
(Views adopted on 29 July 1980), ibid., p. 131, para. 16.
GAOR, A/36/40,
p. 119, para. 16.
A/52/40 (vol. II),
p. 18, para. 14.2.
89Communication No. R.12/52, S. R. López Burgos v. Uruguay (Views adopted on 29 July 1981), in UN doc.
GAOR, A/36/40,
p. 183, para. 13.
90Communication No. 356/1989, T. Collins v. Jamaica (Views adopted on 25 March 1993), in UN doc. GAOR,
A/48/40 (vol. II),
p. 89, para. 8.2.
is entitled to recommend that an appeal should not proceed, he should continue
to
represent the accused if the latter so wishes. Otherwise, the accused should
have the
opportunity to retain counsel at his own expense.91 It is thus essential under
article
14(3)(d) that the domestic court “should ensure that the conduct of a case by
the lawyer
is not incompatible with the interests of justice”, and the Committee will itself
examine
whether there are any indications to show that the lawyer “was not using his
best
judgement in the interests of his client”.92
*****
The Inter-American Court of Human Rights concluded that article 8(2)(c), (d)
and (e) had been violated in the case of Suárez Rosero, where the victim had
been held in
incommunicado detention for 36 days, during which time he was unable to
consult any
lawyer. After the end of his incommunicado detention he was allowed to receive
visits
from his lawyer although he was “unable to communicate with him freely and
privately”, the interviews being conducted in the presence of police officers.93
Article
8(2)(d) was also violated in the case of Castillo Petruzzi where “the victims were
not
allowed legal counsel between the time of their detention and the time they
gave their
statements” to the police, when they “were assigned court-appointed lawyers”.
When
they were finally allowed “legal counsel of their choosing, the latter’s role was
peripheral at best” and they were only allowed to have access to the case file
the day
before the ruling of the court of first instance.94
*****
With regard to article 6(1) taken in conjunction with article 6(3)(c) of the
European Convention, the European Court has held that “it is of capital
importance
that a defendant should appear, both because of his right to a hearing and
because of
the need to verify the accuracy of his statements and compare them with those
of the
victim – whose interests need to be protected – and of the witnesses”.95
Accordingly,
the “legislature must ... be able to discourage unjustified absences”.96 Without
deciding
“whether it is permissible in principle to punish such absences by ignoring the
right to
legal assistance”, the Court concluded in the Poitrimol case that there was a
breach of
article 6, since the applicant had been deprived of his right to appeal to the
Court of
Appeal because he had provided no valid excuse for not attending the hearing.
In the
view of the European Court, the suppression of the right to legal assistance “was
disproportionate in the circumstances”, in which the applicant was not even
allowed to
be represented by his legal counsel.97 In conclusion it can be said that, under
article
91Ibid., loc. cit. See also Communication No. 461/1991, G. Graham and A. Morrison v. Jamaica (Views
adopted on 25 March 1996),
in UN doc. GAOR, A/51/40 (vol. II), pp. 48-49, para. 10.5.
92Communication No. 708/1996, N. Lewis v. Jamaica (Views adopted on 17 July 1997), in UN doc. GAOR,
A/52/40 (vol. II),
pp. 251-252, para. 8.4.
93I-A Court HR, Suárez Rosero case v. Ecuador, judgment of November 1997, in OAS doc. OAS/Ser.L/V/III.39,
doc. 5, 1997 Annual
Report I-A Court HR, p.301, para. 83 read in conjunction with p. 292, para. 34.g and h.
94I-A Court HR, Castillo Petruzzi et al. case v. Peru, judgment of May 30, 1999, Series C, No. 52, pp. 203-
204, paras. 146-149 read in
conjunction with p. 202, para. 141.
95Eur. Court HR, Case of Poitrimol v. France, judgment of 23 November 1993, Series A, No. 277-A, p. 15,
para. 35.
96Ibid., loc. cit.
97Ibid.
6(3)(c) of the European Convention, an accused who deliberately avoids
appearing in
person still retains his or her right to be defended by a lawyer.98
Moreover, in the Pelladoah case the Court emphasized that “everyone charged
with a criminal offence has the right to be defended by counsel”, but that “for
this right
to be practical and effective, and not merely theoretical, its exercise should not
be made
dependent on the fulfilment of unduly formalistic conditions: it is for the courts to
ensure that a trial is fair and, accordingly, that counsel who attends trial for the
apparent
purpose of defending the accused in his absence, is given the opportunity to do
so”.99
The case of Kamasinski
In the case of Kamasinski, where the applicant had a legal aid counsel appointed to
represent him in court proceedings concerning fraud and misappropriation, the
European Court observed that “‘a State cannot be held responsible for every
shortcoming on the part of a lawyer appointed for legal aid purposes’”, and that it
“follows from the independence of the legal profession from the State that the
conduct of the defence is essentially a matter between the defendant and his counsel,
whether counsel be appointed under a legal aid scheme or be privately financed”. In
the view of the Court “the competent national authorities are required under article 6
§ 3 (c) to intervene only if a failure by legal aid counsel to provide effective
representation is manifest or sufficiently brought to their attention in some way”.100
In this case, the Court carefully examined the applicant’s complaints concerning his
legal aid counsel but concluded that there was “no indication ... that in the pre-trial
stage the Austrian authorities had cause to intervene as concerns the applicant’s legal
representation” and that it could not be found on the evidence before the Court that
the domestic authorities had “disregarded the specific safeguard of legal assistance”
under article 6(3)(c) “or the general safeguard of a fair trial under paragraph 1”.101
However, during the trial itself a dispute occurred between the applicant and his
lawyer with the result that the latter asked the court to be discharged from the case, a
request the court refused. Although “the Austrian judicial authorities were thus put
on notice that, in Mr Kamasinski’s opinion, the conditions for the conduct of the
defence were not ideal”, the European Court concluded that article 6(1) and (3)(c)
had not been violated.102
Lawyers 273
98Eur. Court HR, Case of Pelladoah v. the Netherlands, judgment of 22 September 1994, Series A, No. 297-
B, para. 40 at p. 35 and Eur.
Court HR, Case of van Geyseghem v. Belgium, judgment of 21 January 1999, Reports 1999-I, pp. 140-141,
paras. 35-36.
99Eur. Court HR, Case of Pelladoah v. the Netherlands, judgment of 22 September 1994, Series A, No. 297-
B, p. 35, para. 41.
100Eur. Court HR, Kamasinski Case, judgment of 19 December 1989, Series A, No. 168, pp. 32-33, para. 65.
101Ibid., p. 34, para. 69.
102Ibid., paras. 70-71.
3.5.1 The right to effective legal assistance in death penalty cases
As consistently held by the Human Rights Committee, it is “axiomatic that
legal representation must be made available in capital cases”, and this not only
“at the
trial in the court of first instance, but also in appellate proceedings”. Moreover,
the
“legal assistance to the accused in a capital case must be provided in ways that
adequately and effectively ensure justice”.103 According to the Committee’s
jurisprudence under article 14(3)(d):
“The court should ensure that the conduct of a case by a lawyer is not
incompatible with the interests of justice. While it is not for the Committee
to question counsel’s professional judgement, the Committee considers
that in a capital case, when counsel for the accused concedes that there is
no merit in the appeal, the Court should ascertain whether counsel has
consulted with the accused and informed him accordingly. If not, the
Court must ensure that the accused is so informed and given an
opportunity to engage other counsel.”104
In the case of Morrison, the author should consequently “have been informed
that legal aid counsel was not going to argue any grounds in support of the
appeal, so
that he could have considered any remaining options open to him”. Since this
was not
done, article 14(3)(d) was violated.105
Article 14(3)(d) was violated in the similar Reid case where the author had a
court-appointed lawyer but had indicated that he wanted to be present himself
during
the appeal proceedings. This possibility was denied him since he had a lawyer;
however,
his lawyer subsequently decided that there was no merit in the author’s appeal
and
advanced no legal arguments in favour of it being granted, “thus effectively
leaving him
without legal representation”.106 In the view of the Committee, and considering
that
this was “a case involving the death penalty”, the State party “should have
appointed
another lawyer for [the author’s] defence or allowed him to represent himself at
the
appeal proceedings”.107 In the McLeod case, the legal aid representative had in
fact
consulted with the author prior to the appeal, but, unbeknown to him, had
decided that
he would argue no grounds of appeal. There was no indication in this case that
the
Appeal Court had taken any steps to ensure that the author’s right to be duly
informed
was respected, and the Committee therefore concluded that his rights under
both
article 14(3)(b) and article 14(3)(d) had been violated.108
doc. GAOR, A/45/40,
p. 73, para.12.5.
104Communication No. 663/1995, M. Morrison v. Jamaica (Views adopted on 3 November 1998), in UN doc.
GAOR, A/54/40
(vol. II), p. 155, para. 8.6.
105Ibid., loc. cit. For a similar case, see also Communication No. 572/1994, H. Price v. Jamaica (Views
adopted on 6 November
1996), in UN doc. GAOR, A/52/40 (vol. II), pp. 155-156, para. 9.2.
106Communication No. 250/1987, C. Reid v. Jamaica (Views adopted on 20 July 1990), in UN doc. GAOR,
A/45/40 (vol. II),
p. 91, para. 11.4.
107Ibid., loc. cit.
108Communication No. 734/1997, A. McLeod v. Jamaica (Views adopted on 31 March 1998), in UN doc.
GAOR, A/53/40
(vol. II), pp. 216-217, para. 6.3. See also e.g. Communication No. 528/1993, M. Steadman v. Jamaica (Views
in UN doc. GAOR, A/52/40 (vol. II), pp. 26-27, para. 10.3.
Article 14(3)(d) was further violated in a capital case where the author had
indicated that he wished to be present in person during the appeal proceedings
and that
he did not want legal aid. This wish was ignored and the appeal was pursued in
the
presence of a legal aid attorney, who argued the appeal on a ground that the
author had
not wished to pursue. The Committee noted “with concern that the author was
not
informed with sufficient advance notice about the date of the hearing of his
appeal”, a
delay that “jeopardized his opportunities to prepare his appeal and to consult
with his
court-appointed lawyer, whose identity he did not know until the day of the
hearing
itself”. His “opportunities to prepare the appeal were further frustrated by the
fact that
the application for leave to appeal was treated as the hearing of the appeal
itself, at
which he was not authorized to be present”.109
Failure of lawyer to appear in court:
The case of Robinson
This situation arose in the Robinson case, where the trial had been postponed several
times because the prosecution had problems locating its chief witness. When the
witness was finally located and the trial began, the author’s lawyers were not present
in court, yet the trial was allowed to proceed and the author had to defend himself. He
was convicted of murder and sentenced to death.110 The Committee based itself on
the terms of article 14(3)(d), according to which everyone shall have legal assistance
assigned to him, in any case where the interests of justice so require.111 It reiterated
that “it is axiomatic that legal assistance be available in capital cases”, and that this is
so “even if the unavailability of private counsel is to some degree attributable to the
author himself, and even if the provision of legal assistance would entail an
adjournment of proceedings”; moreover, this “requirement is not rendered
unnecessary by efforts that might otherwise be made by the trial judge to assist the
author in handling his defence in the absence of counsel”.112 It followed that in this
case “the absence of counsel constituted unfair trial”.113
Lawyers 275
109Communication No. 338/1988, L. Simmonds v. Jamaica (Views adopted on 23 October 1992), in UN doc.
GAOR, A/48/40
(vol. II), p. 82, para. 8.4. See also a case where the lawyer failed to follow the accused’s instructions:
Communication No. 248/1987,
G. Campbell v. Jamaica (Views adopted on 30 March 1992, in UN doc. GAOR, A/47/40, p. 247, para. 6.6.
110Communication No. 223/1987, F. Robinson v. Jamaica (Views adopted on 30 March 1989), in UN doc.
GAOR, A/44/40,
pp. 244-245, para. 10.2.
111Ibid., p. 245, para. 10.3.
112Ibid., loc. cit.
113Ibid.
The case of Domukovsky et al.
In the case of Domukovsky et al., the four authors complained that they had not had a
fair hearing after they had been removed from the court room and were subsequently
absent from the proceedings, which ended in a death sentence being imposed in two
cases; they were also refused lawyers of their choice. The Committee considered that
article 14(3)(d) had been violated in respect of each author, emphasizing that
“at a trial in which the death penalty can be imposed, which was the
situation for each author, the right to a defence is inalienable and
should be adhered to at every instance and without exception.
This entails the right to be tried in one’s presence, to be defended by
counsel of one’s own choosing, and not to be forced to accept
ex-officio counsel.”114
Since the State party had not in this case shown that it had taken “all reasonable
measures to ensure the authors’ continued presence at the trial, despite their alleged
disruptive behaviour”, and considering that it had not ensured “that each of the
authors was at all times defended by a lawyer of his own choosing”, the Committee
concluded that article 14(3)(d) had been violated.115
*****
The African Commission on Human and Peoples’ Rights concluded that
Burundi had violated the right to a defence in article 7(1)(c) of the African
Charter on
Human and Peoples’ Rights in a case where the courts had refused to designate
a
defence lawyer to an accused person who was eventually sentenced to death.
The
Commission “emphatically” recalled that “the right to legal assistance is a
fundamental
element of the right to fair trial”, in particular in cases “where the interests of
justice
demand it”. Given “the gravity of the allegations brought against the accused”
person
in this case “and the nature of the penalty he faced, it was in the interests of
justice for
him to have the benefit of the assistance of a lawyer at each stage of the
case”.116 Article
7(1)(c) of the African Charter was also violated in a death penalty case against
Nigeria
where the defence counsel for the seven complainants “was harassed and
intimidated
to the extent of being forced to withdraw from the proceedings. In spite of this
forced
withdrawal of counsel, the tribunal proceeded to give judgement in the matter,
finally
sentencing the accused to death”. In the view of the Commission the defendants
were
thus “deprived of their right to defence, including their right to be defended by
counsel
of their choice” contrary to article 7(1)(c) of the African Charter.117
114Communications Nos. 623, 624, 626, 627/1995, V. P. Domukovsky et al. v. Georgia (Views adopted on 6
GAOR, A/53/40 (vol. II), p. 111, para. 18.9; emphasis added.
115Ibid., loc. cit.
116ACHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication No.
231/99, decision adopted during the 28th
Ordinary session, 23 October – 6 November 2000, para. 30 of the text of the decision as published at the
following web-site:
117ACHPR, Constitutional Rights Project (on behalf of Zamani Lekwot and six Others) v. Nigeria,
during the 16th session, October 1994, para. 29 of the text of the decision as published at the following web-
site:
http://www.up.ac.za/chr/ahrdb/acomm_decisions.html.
3.5.2 The right to free legal aid
Article 14(3)(d) provides that in the determination of any criminal charge,
everyone shall be entitled “to have legal assistance assigned to him, in any case
where
the interests of justice so require, and without payment by him in any such case
if he
does not have sufficient means to pay for it”. Article 6(3)(c) of the European
Convention on Human Rights also provides for the right of a person not having
“sufficient means to pay for legal assistance, to be given it free when the
interests of
justice so require”. Article 8(2)(e) of the American Convention refers back to the
provisions of national law in this respect, while the African Charter on Human
and
Peoples’ Rights is silent on the question of free legal aid. Articles 20(4)(d) and
21(4)(d)
of the respective Statutes of the International Criminal Tribunals for Rwanda and
the
former Yugoslavia have provisions similar to article 14(3)(d) of the International
Covenant.
For the granting of free legal aid, article 14(3)(d) of the International Covenant
and article 6(3)(c) of the European Convention set two conditions: first, the
unavailability of sufficient funds to pay for a lawyer and, second, that the
interests of
justice require such aid. As seen in the preceding subsection, the interests of
justice
would require the granting of legal aid in capital punishment cases where the
accused
wishes for such aid and cannot pay for it himself. Other less dramatic cases
involving
the interests of justice may of course also require the granting of free legal aid.
*****
In a case concerning a constitutional appeal, the Human Rights Committee
thus held that “where a convicted person seeking constitutional review of
irregularities
in a criminal trial has insufficient means to meet the costs of legal assistance in
order to
pursue his constitutional remedy and where the interests of justice so [require],
legal
assistance should be provided by the State”; such review would require a fair
hearing
and consistency with article 14(3)(d) of the Covenant.118 Consequently, article 14
was
violated in a case where “the absence of legal aid ... denied the author the
opportunity to
test the irregularities of his criminal trial in the Constitutional Court in a fair
hearing”.119
*****
The European Court has observed with respect to article 6(3)(c) of the
European Convention that “the right of an accused to be given, in certain
circumstances, free legal assistance constitutes one aspect of the notion of a fair
trial in
criminal proceedings”.120 In determining whether the interests of justice require
the
granting of free legal aid, the European Court has regard to various criteria, such
as “the
seriousness of the offence” committed, “the severity of the sentence” the
accused
person risks and “the complexity of the case”.121 Where the maximum
sentence was
Lawyers 277
118Communication No. 707/1996, P. Taylor v. Jamaica (Views adopted on 14 July 1997), in UN doc. GAOR,
A/52/40 (vol. II),
p. 241, para. 8.2.
119Ibid., loc. cit.
120Eur. Court HR, Case of Quaranta v. Switzerland, judgment of 24 May 1991, Series A, No. 205, p. 16, para.
27.
121Ibid., p. 17, paras. 32-34; emphasis added.
three years’ imprisonment for a drug offence, the Court concluded that “free
legal
assistance should have been afforded by reason of the mere fact that so much
was at
stake”.122 Since the alleged offence had occurred when the applicant was on
probation,
an additional factor was “the complexity of the case”, the domestic Court having
“both
to rule on the possibility of activating the suspended sentence and to decide on a
new
sentence”.123 Consequently, there was a breach of article 6(3)(c) of the
Convention.
The European Court has held, furthermore, that the manner in which article
6(1) and (3)(c)of the European Convention
“... is to be applied in relation to appellate or cassation courts depends
upon the special features of the proceedings involved; account must be
taken of the entirety of the proceedings conducted in the domestic legal
order and of the role of the appellate or cassation court therein”.124
The case of Granger, where legal aid had been refused, concerned appeal
proceedings against a conviction for perjury following which the applicant was
sentenced to five years’ imprisonment. As noted by the European Court, there
could
“thus be no question as to the importance of what was at stake in the appeal”.125
After
having examined the proceedings before the appeal court, the European Court
also
found that the applicant had not been “in a position fully to comprehend the
pre-prepared speeches submitted to” the High Court of Justiciary by the Solicitor
General, “or the opposing arguments submitted to the court”, and that it was
“also
clear that, had the occasion arisen, he would not have been able to make an
effective
reply to those arguments or to questions from the bench”.126 As it turned out,
one of
the grounds for appeal “raised an issue of complexity and importance” that was
in fact
so difficult that the High Court had to adjourn its hearing “and called for a
transcript of
the evidence given at the applicant’s trial, so as to be able to examine the
matter more
thoroughly”.127
In the light of this situation, the European Court of Human Rights concluded
that “some means should have been available to the competent authorities,
including
the High Court of Justiciary in exercise of its overall responsibility for ensuring
the fair
conduct of the appeal proceedings, to have the refusal of legal aid
reconsidered”. In the
view of the Court “it would have been in the interests of justice for free legal
assistance
to be given to the applicant” at least at the stage following the adjournment of
the
proceedings, since such a course “would in the first place have served the
interests of
justice and fairness by enabling the applicant to make an effective contribution
to the
proceedings”, and, secondly, would have enabled that Court to have “the benefit
of
hearing ... expert legal argument from both sides on a complex issue”.128 The
Court
concluded, consequently, that there had been a violation of article 6(3)(c) taken
together with article 6(1) of the Convention.
122Ibid., para. 33.
123Ibid., para. 34.
124Eur. Court HR, Case of Granger v. the United Kingdom, judgment of 28 March 1991, Series A, No. 174, p.
125Ibid., p. 18, para. 47.
126Ibid., loc. cit.
127Ibid.
128Ibid., para. 47 at p. 19.
The Pakelli case
In the case of Pakelli, article 6(3)(c) was violated since the applicant was refused legal
aid in order to be represented in the Federal Court which was going to hold an oral
hearing in his case, a course it took only in exceptional cases. In the view of the
European Court the personal presence of the applicant could not compensate for the
lack of a legal practitioner to examine the legal issues arising, which inter alia
concerned the application of a new version of the Code of Criminal Procedure.
Consequently, the applicant was deprived of “the opportunity of influencing the
outcome of the case”.129
It is noteworthy that, in the view of the European Court, “the existence of a
violation is conceivable even in the absence of prejudice”, and that to require
proof that
the lack of effective assistance prejudiced the applicant in interpreting article
6(3)(c)
“would deprive it in large measure of its substance”.130
Lastly, it is important to note that the available legal assistance must be
“effective”, and that consequently it is not sufficient for the purposes of
complying
with article 6(3)(c) that a legal counsel has been merely nominated.131
3.5.3 The right to privileged communications with one’s lawyer
The right to privileged communications with one’s lawyer was dealt with in
section 6.4 of Chapter 6 concerning “The right to legal assistance”. This right is
of
course also applicable at the stage of trial and appeal proceedings, during which
the
accused must be ensured adequate time and facilities for consulting with his or
her
lawyer confidentially.
Everyone has the right to defend himself or herself in person or to appoint
a lawyer of his or her own choice in order to ensure an efficient defence.
The right to legal assistance must be effectively available, in particular in
capital punishment cases. The domestic courts have a duty to ensure that
the accused enjoys an effective defence.
Incommunicado detention violates the right to effective access to one’s
lawyer.
Lawyers 279
129Eur. Court HR, Case of Pakelli v. Federal Republic of Germany, judgment of 25 April 1983, Series A, No.
64, p. 18, para. 39.
130Eur. Court HR, Case of Artico v. Italy, judgment of 13 May 1980, Series A, No. 37, para. 35 at p. 18.
131Ibid., para. 33 at p. 16.
If lacking sufficient means to pay for a lawyer, and if the interests of
justice so require, a person accused of a criminal offence has the right to
free legal aid. The interests of justice relate to such aspects as the
severity
of the crimes and potential sentence that might be imposed and the
complexity of the case.
The accused must have adequate time and facilities to communicate with
his or her legal counsel. Their communications are privileged and must be
confidential.
3.6 The right to be present at one’s trial
Article 14(3)(d) of the Covenant on Civil and Political Rights, and articles
20(4)(d) and 21(4)(d) of the respective Statutes of the International Criminal
Tribunals
for Rwanda and the former Yugoslavia provide that everyone has the right to “be
tried
in his [or her] presence”. Where the State party has failed to substantiate its
denial of the
alleged violation of this right by, for instance, submitting a copy of the trial
transcript,
the Committee has concluded that this right has been violated.132
*****
While article 6(1) of the European Convention on Human Rights does not
expressly mention a person’s right to participate in his or her trial, the European
Court
of Human Rights has held that the existence of this right is “shown by the ‘object
and
purpose of the article taken as a whole’”.133 Where there was no evidence that
the
applicant had intended to waive his right to participate in his trial and where,
inter alia,
the President of the Savona Regional Court had not sought to notify him in
person of
the summons to appear before his court so that he was tried in absentia, it found
that the
trial had not been fair within the meaning of article 6(1) of the Convention.134
3.6.1 Trials in absentia
Although the international monitoring organs have not yet developed any
theory around trials in absentia, it appears that they might accept that such
trials may be
held in special circumstances. This is at least clear with regard to the
International
Covenant on Civil and Political Rights, from the Committee’s General Comment
No.
13 on article 14, which states that “when exceptionally for justified reasons trials
in
absentia are held, strict observance of the rights of the defence is all the more
necessary”.135 Consequently, while such trials do not ipso facto constitute a
violation of
article 14 of the Covenant, the basic requirements of a fair trial must be
maintained; a
trial in absentia is thus only compatible with article 14 when the accused has
been
A/47/40, p. 289,
para. 6.5.
133Eur. Court HR, Brozicek Case v. Italy, judgment of 19 December 1989, Series A, No. 167, p. 19, para. 45.
134Ibid., p. 19, paras. 45-46.
summoned “in a timely manner and informed of the proceedings against him”
and the
State party itself “must” in such cases show that the principles of a fair trial were
respected.136 Where the State party merely “assumed” that the author had been
summoned in a timely manner, the Committee considered that this was “clearly
insufficient to lift the burden placed on the State party if it is to justify trying an
accused
in absentia”; it was “incumbent on the court that tried the case to verify that the
author
had been informed of the pending case before the proceeding to hold the trial”
in his
absence, but, failing any evidence that the court did so, the Committee
concluded “that
the author’s right to be tried in his presence was violated”.137
*****
As noted above, the European Court of Human Rights has emphasized that
“the object and purpose” of article 6 of the European Convention “taken as a
whole
show that a person ‘charged with a criminal offence’ is entitled to take part in
the
hearing”.138 In the case of Colozza and Rubinat, the Italian authorities had held a
trial by
default since they were unable to trace the applicant who had moved without
leaving his
address. He was eventually classified as a latinante, i.e. a person who is wilfully
evading
the execution of a warrant issued by a court. A court-appointed lawyer failed to
appear
at the trial, which had to be postponed, a procedure repeated since the second
court-appointed lawyer also failed to appear. The trial was eventually concluded
after
the court had appointed, during the sitting, another official defence lawyer. The
applicant was convicted and sentenced to six years’ imprisonment. A few
months later
he was arrested at his home in Rome. He filed a “late appeal” that was
dismissed. The
European Court agreed with the Government that
“the impossibility of holding a trial by default may paralyse the conduct of
criminal proceedings, in that it may lead, for example, to dispersal of the
evidence, expiry of the time-limit for prosecution or a miscarriage of
justice. However, in the circumstances of the case, this fact does not appear
to the Court to be of such a nature as to justify a complete and irreparable
loss of the entitlement to take part in the hearing. When domestic law
permits a trial to be held notwithstanding the absence of a person ‘charged
with a criminal offence’ who is in Mr. Colozza’s position, that person
should, once he becomes aware of the proceedings, be able to obtain, from
a court which has heard him, a fresh determination of the merits of the
charge.”139
The Court importantly added that “the resources available under domestic
law must be shown to be effective and a person ‘charged with a criminal offence’
who is
in a situation like that of Mr. Colozza must not be left with the burden of proving
that
he was not seeking to evade justice or that his absence was due to force
majeure”.140
Lawyers 281
136Communication No. 699/1996, A. Maleki v. Italy (Views adopted on 15 July 1999), in UN doc. GAOR,
A/54/40 (vol. II),
p. 183, paras. 9.2-9.3.
137Ibid., pp. 183-184, para. 9.4.
138Eur. Court HR, Case of Colozza v. Italy, judgment of 12 February 1985, Series A, No. 89, p. 14, para. 27.
139Ibid., p. 15, para. 29.
140Ibid., para. 30 at p. 16.
An accused person has the right to be present at his or her trial. Trials in
absentia may be acceptable in special circumstances but must preserve
the
rights of an effective defence. Once an accused who has not wilfully tried
to
avoid justice is aware of the proceedings, he or she should be entitled to a
new determination of the merits of the charge.
3.7 The right not to be compelled to testify
against oneself or to confess guilt
The prohibition on self-incrimination was dealt with in subsection 6.5 of
Chapter 6 in view of its specific importance during criminal investigations.
However,
the right not to be compelled to testify against oneself does of course remain
equally
valid throughout the judicial proceedings. It is recalled that article 14(3)(g) of the
International Covenant provides that “in the determination of any criminal
charge
against him”, every person has the right “not to be compelled to testify against
himself
or to confess guilt”. According to article 8(2)(g) of the American Convention,
everyone
has “the right not to be compelled to be a witness against himself or to plead
guilty”,
and article 8(3) further specifies that “a confession of guilt by the accused shall
be valid
only if it is made without coercion of any kind”. While the African Charter and the
European Convention contain no similar provision, both article 55(1)(a) of the
Statute
of the International Criminal Court and articles 20(4)(g) and 21(4)(g) of the
respective
Statutes of the International Criminal Tribunals for Rwanda and the former
Yugoslavia
contain protection against self-incrimination.
*****
In its General Comment No. 13 on article 14 of the International Covenant,
the Human Rights Committee stated that, in considering this safeguard
contained in
subparagraph (3)(g), articles 7 and 10(1) of the Covenant “should be borne in
mind”,141
these articles respectively outlawing torture and other cruel, inhuman or
degrading
treatment and stipulating that “all persons deprived of their liberty shall be
treated with
humanity and with respect for the inherent dignity of the human person”. As
emphasized by the Committee, “in order to compel the accused to confess or to
testify
against himself, frequently methods which violate these provisions are used. The
law
should”, however, “require that evidence provided by means of such methods or
any
other form of compulsion is wholly unacceptable”.142 Moreover, “judges should
have
authority to consider any allegations made of violations of the rights of the
accused
during any stage of the prosecution”.143 It is recalled in this respect that
Guideline 16 of
the Guidelines on the Role of Prosecutors also provides that prosecutors shall
refuse
evidence that has been obtained by recourse to unlawful methods.144
142Ibid., loc. cit.
143Ibid., para. 15.
144See Principle 16 quoted in extenso in Chapter 6 above, subsection 6.2.
The Committee has further held that the guarantee “that no one shall be
‘compelled to testify against himself or to confess guilt’, must be understood in
terms of
the absence of any direct or indirect physical or psychological pressure
from the
investigating authorities on the accused, with a view to obtaining a
confession of
guilt”.145 The Committee has thus found violations of article 14(3)(g) in cases
where
the persons accused have been compelled to sign statements incriminating
themselves,146 or where attempts have been made – including through recourse
to
torture or duress – to compel them to do so.147
However, where various issues relating to alleged self-incrimination under
duress have not been brought to the attention of the trial judge either by the
author
himself or his privately retained lawyer, the Committee has concluded that the
State
party could not be held responsible under article 14(1) [sic] for the purportedly
negative
outcome of this failure.148
*****
With regard to article 8(3) of the American Convention on Human Rights, the
American Court of Human Rights found in the case of Castillo Petrzzi et al. that it
had
not been proven that this provision had been violated. Although it was clear that
the
accused “were urged to tell the truth” during the preliminary testimony before
the
Judge of the Special Military Court of Inquiry, nothing in the record suggested
“that any
punishment or other adverse legal consequence was threatened if they did not
tell the
truth”; nor was there “any evidence to suggest that the accused were required
to testify
under oath or to swear to tell the truth, either of which would have violated their
right
to choose between testifying and not testifying”.149
3.7.1 Prohibition on the use of evidence obtained through
unlawful means/treatment
In Chapter 6 reference was made to Guideline 16 of the Guidelines on the
Role of Prosecutors, according to which prosecutors shall refuse to use evidence
which
they “know or believe on reasonable grounds” to have been “obtained through
recourse to unlawful methods, which constitute a grave violation of the suspect’s
human rights”, in particular when such methods have involved recourse to
torture or
other human rights abuses.
Lawyers 283
A/49/40 (vol. II),
146Communication No. R.12/52, S. R. López Burgos v. Uruguay (Views adopted on 29 July 1981), in UN doc.
GAOR, A/36/40,
p. 183, para. 13; and Communication No. R.18/73, M. A. Teti Izquierdo v. Uruguay (Views adopted on 1 April
1982), in UN doc.
GAOR, p. 186, para. 9.
GAOR, A/38/40,
p. 159, para. 10; and Communication No. 328/1988, R. Z. Blanco v. Nicaragua (Views adopted on 20 July
1994), in UN doc. GAOR,
A/49/40 (vol. II), p. 18, para. 10.4.
A/49/40 (vol. II),
p. 27, para. 11.3.
paras. 167-168.
Other pertinent international provisions on this issue are to be found in article
15 of the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and article 10 of the American Convention to Prevent
and
Punish Torture. The former provides that “each State Party shall ensure that any
statement which is established to have been made as a result of torture shall not
be
invoked as evidence in any proceedings, except against a person accused of
torture as
evidence that the statement was made”. With a similar proviso, the latter
provision also
declares inadmissible, “as evidence in a legal proceeding”, evidence obtained
through
torture.
Article 69(7) of the Statute of the International Criminal Court is drafted in
less categorical terms in that “evidence obtained by means of a violation of this
Statute
or internationally recognized human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence;
or
(b) The admission of the evidence would be antithetical to and would
seriously damage the integrity of the proceedings.”
It is not yet possible to know how this provision will be interpreted by the
International Criminal Court, but it would in any event appear to provide a
possibility
for it to consider evidence obtained by unlawful means, provided there was no
doubt as
to the reliability of such evidence and its admission would not be “antithetical to”
the
integrity of the proceedings. In the light of the clear statements elsewhere, inter
alia in
article 15 of the Convention against Torture, it might, however, be presumed
that
evidence obtained by torture would be an example par excellence of evidence
that is
unreliable, the use of which would indeed be antithethical to the integrity of the
proceedings.
Lastly, it is important to note in this context that the Human Rights
Committee has stated that “it is important for the discouragement of violations
under
article 7 [of the International Covenant] that the law must prohibit the use
of
admissibility in judicial proceedings of statements or confessions
obtained
through torture or other prohibited treatment”.150
The right of an accused not to be compelled to testify against himself or
herself remains valid throughout the trial proceedings. It means that there
must be an absence of both direct and indirect physical or psychological
pressure from the investigating authorities for the purposes of obtaining a
confession. An accused who has confessed guilt after such undue pressure
must bring the matter before the competent authorities, including the
judge(s) in the trial court, failing which he or she runs the risk of not
having this undue compulsion considered in connection with the
determination of the criminal charge.
150See General Comment No. 20, in United Nations Compilation of General Comments, p. 141, para. 12;
emphasis added.
Judges and prosecutors must be attentive to any sign of unlawful
compulsion related to confessions and are not allowed to invoke such
confessions against the accused.
The use of evidence and confessions obtained by torture is unlawful and
should be expressly prohibited by national law.
3.8 The right to call, examine, or have examined,
witnesses
Article 14(3)(e) of the International Covenant provides that, in the
determination of any criminal charge against him, everyone shall be entitled to
“examine, or have examined, the witnesses against him and to obtain the
attendance
and examination of witnesses on his behalf under the same conditions as
witnesses
against him”. Article 6(3)(d) of the European Convention on Human Rights
contains
an identically worded provision, while article 8(2)(f) of the American Convention
on
Human Rights contains the “right of the defence to examine witnesses present in
the
court and to obtain the appearance, as witnesses, of experts or other persons
who may
throw light on the facts”. Article 20(4)(e) and article 21(4)(e) of the respective
Statutes
of the International Criminal Tribunals for Rwanda and the former Yugoslavia
both
also have wording similar to the International Covenant in this respect.
*****
According to the Human Rights Committee, article 14(3)(e) “does not
provide an unlimited right to obtain the attendance of witnesses requested by
the
accused or his counsel”, and where there is no evidence that the court’s refusal
to call a
certain witness does not violate the principle of equality of arms – for instance, if
the
evidence is not part of the case under consideration – there has been no
violation of
article 14(3)(e).151
As to the question whether the State party can be held responsible for a
defence lawyer’s failure to call witnesses, the Committee has held that it “cannot
be held
accountable for alleged errors made by [the lawyer] unless it was or should
have been
manifest to the judge that the lawyer’s behaviour was incompatible
with the
interests of justice”.152
In a case where it was “uncontested that no effort was made to have three
potential alibi witnesses testify on the author’s behalf during the trial”, the
Committee
noted that it was “not apparent from the material before [it] and the trial
transcript that
counsel’s decision not to call witnesses was not made in the exercise of his
professional
judgement”. In these circumstances, the failure to examine witnesses on the
author’s
Lawyers 285
151Communication No. 237/1987, D. Gordon v. Jamaica (Views adopted on 5 November 1992), in doc.
p. 10, para. 6.3.
152Communication No. 610/1995, Henry v. Jamaica (Views adopted on 20 October 1998), in UN doc. GAOR,
A/54/40 (vol. II),
behalf could not be attributed to the State party and there was no violation of
article
14(3)(e).153
In general, it can be said that, where (1) there is no indication that either the
author or his or her legal counsel has complained to the trial judge that the time
or
facilities for the preparation of the defence have been inadequate, and (2) there
is no
evidence “that counsel’s decision not to call witnesses was not in the exercise of
his
professional judgement, or that, if a request to call witnesses was made, the
judge
disallowed it”, the Committee is reluctant to conclude that either article 14(3)(b)
or (e)
has been violated.154
The case of Reid
In the case of Reid, the State party had “not denied the author’s claim that the court
failed to grant counsel sufficient minimum time to prepare his examination of
witnesses” and the Committee thus found a violation of article 14(3)(e). The author
had alleged that the legal aid attorney was only assigned to him on the day his trial
opened and that the trial judge refused a postponement to enable the lawyer to
discuss the case with his client; according to the author, the lawyer “was wholly
unprepared” and had told him “that he did not know which questions to pose to the
witnesses”.155
Article 14(3)(e) and (5) of the Covenant was also violated in a case where the
domestic court had refused “to order expert testimony of crucial importance to
the
case”.156
*****
Invoking the case-law of the European Court of Human Rights, the
Inter-American Court of Human Rights has held that “one of the prerogatives of
the
accused must be the opportunity to examine or have examined witnesses
against him
and to obtain the attendance and examination of witnesses on his behalf, under
the
same conditions as witnesses against him”.157 Thus, in the case of Castillo
Petruzzi et al.,
article 8(2)(f) of the American Convention was violated since the law applied in
the legal
proceedings concerned “did not allow cross-examination of the witnesses whose
testimony was the basis for the charges brought against the alleged victims. The
problem created by disallowing cross-examination of the police and military
agents was
153Communication No. 615/1995, B. Young v. Jamaica (Views adopted on 4 November 1997), in UN doc.
GAOR, A/53/40
(vol. II), pp. 74-75, para. 5.5.
A/48/40 (vol. II),
pp. 88-89, para. 8.1.
155Communication No. 250/1987, C. Reid v. Jamaica (Views adopted on 20 July 1990), in UN doc. GAOR,
A/45/40 (vol. II),
p. 91, para. 11.3 as read in conjunction with p. 87, para. 4.
156Communication No. 480/1991, J. L. García Fuenzalida v. Ecuador (Views adopted on 12 July 1996), in UN
doc. GAOR,
A/51/40 (vol. II), p. 55, para. 9.5.
para. 154; for the
European case-law see Eur. Court HR, case of Barberà, Messegué and Jabardo, judgment of 6 December
1998, Series A, No. 146 and Eur. Court
HR, Bönisch case, judgment of 6 May 1985, Series 92.
compounded ... by the fact that the suspects were not allowed the advice of
counsel
until they had made their statements to the police”, a situation that “left the
defence
attorneys with no means to refute the evidence compiled and on record in the
police
investigation report”.158
*****
With regard to article 6(3)(d) of the European Convention on Human Rights,
the European Court held in the Delta case that
“In principle, the evidence must be produced in the presence of the
accused at a public hearing with a view to adversarial argument. This does
not mean, however, that in order to be used as evidence statements of
witnesses should always be made at a public hearing in court: to use as
evidence such statements obtained at the pre-trial stage is not in itself
inconsistent with paragraphs 3 (d) and 1 of Article 6, provided the rights of
the defence have been respected. As a rule, these rights require that an
accused should be given an adequate and proper opportunity to challenge
and question a witness against him, either at the time the witness makes his
statement or at some later stage of the proceedings...”.159
Consequently, in the Delta case, where the applicant was convicted on the
basis of testimony given by witnesses at the police-investigation stage whose
credibility
neither the applicant nor his legal counsel had been able to challenge, the
European
Court found a violation of the right to a fair trial in article 6(1) and (3)(d) of the
Convention.160
The case of Unterpertinger
In the case of Unterpertinger, the applicant had been convicted of causing bodily harm
to his step-daughter and former wife in two separate incidents. Both victims refused
to give evidence in court although their statements were read out during the trial. The
European Court observed that, although the reading out of their statements was not
inconsistent with article 6(1) and (3)(d) of the Convention, “the use made of them as
evidence must nevertheless comply with the rights of the defence, which it is the
object and purpose of article 6 to protect”. This was especially so since the applicant
had “not had an opportunity at any stage in the earlier proceedings to question the
persons whose statements [were] read out at the hearing”.161 Since the applicant was
prevented from having his former wife and step-daughter examined, or from having
them examined on their statements in order to challenge their credibility, and given
that the Court of Appeal treated their statements “as proof of the truth of the
accusations made by the women”, the applicant did not have a fair trial and there was
a breach of both article 6(1) and 3(d) of the Convention.162
Lawyers 287
paras. 153 and 156.
159Eur. Court HR, Delta Case v. France, judgment of 19 December 1990, Series A, No. 191-A, p. 16, para.
36.
160Ibid., para. 37.
161Eur. Court HR, Case of Unterpertinger v. Austria, judgment of 24 November 1986, Series A, No. 110, pp.
14-15, para. 31.
162Ibid., p. 15, paras. 32-33.
However, where the reading out of witness statements did not constitute the
only item of evidence on which the national court based its decision, the Court
has
found that the applicant was not deprived of a fair trial contrary to article 6(1)
and (3)(d)
taken together.163
It is noteworthy that, according to the jurisprudence of the European Court,
the term “witness” in article 6(3)(d) is “to be given an autonomous
interpretation”, and
can thus also comprise, for instance, statements given to police officers by
people who
do not give “direct evidence” in court.164
An accused person has the right to call and examine or have examined
witnesses against him or her under the same conditions as the
prosecution.
Consequently, in order to guarantee a fair trial the domestic court must
provide for the possibility of adversarial questioning of witnesses.
The right to call witnesses does not mean that an unlimited number of
witnesses may be called. Witnesses to be called must be likely to be
relevant to the case.
Domestic courts must give the accused and his or her lawyer adequate
time to prepare for the questioning of witnesses.
The national judge must be attentive to manifest deficiencies in the
defence
lawyer’s professional conduct, and, where necessary, intervene in order to
ensure the right to a fair trial, including equality of arms.
3.8.1 Anonymous witnesses
The issue of anonymous witnesses is not regulated in the human rights treaties
considered in this Manual, but Rule 69 of the Rules of Procedure and Evidence of
the
International Criminal Tribunals for Rwanda and for the former Yugoslavia deals
with
“Protection of Victims and Witnesses”. In the case of the Rwanda Tribunal, Rule
69
reads:
“(A) In exceptional circumstances, either of the parties may apply to a
Trial Chamber to order the non-disclosure of the identity of a victim or
witness who may be in danger or at risk, until the Chamber decides
otherwise.
(B) In the determination of protective measures for victims and
witnesses, the Trial Chamber may consult the Victims and Witnesses
Support Unit.
(C) Subject to Rule 75, the identity of the victim or witness shall be
disclosed in sufficient time prior to the trial to allow adequate time for
preparation of the prosecution and the defence.”
163Eur. Court HR, Asch Case v. Austria, judgment of 26 April 1991, Series A, No. 203, p. 11, paras. 30-31.
164See e.g. Eur. Court HR, Windisch Case v. Austria, judgment of 27 September 1990, Series A, No. 186, pp.
9-10, para. 23.
Rule 69 of the Rules of Procedure and Evidence of the Tribunal for the
former Yugoslavia is slightly differently worded:
“(A) In exceptional circumstances, the Prosecutor may apply to a Trial
Chamber to order the non-disclosure of the identity of a victim or witness
who may be in danger or at risk until such person is brought under the
protection of the Tribunal.
(B) In the determination of protective measures for victims and
witnesses, the Trial Chamber may consult the Victims and Witnesses
Section.
(C) Subject to Rule 75, the identity of the victim or witness shall be
disclosed in sufficient time prior to the trial to allow adequate time for
preparation of the defence.”
Rule 75(A) of the Rules of Procedure of the Court for the former Yugoslavia
concerns “Measures for the Protection of Victims and Witnesses”, and allows a
Judge
or a Chamber “proprio motu or at the request of either party, or of the victims or
witness
concerned, or of the Victims and Witnesses Section [to] order appropriate
measures for
the privacy and protection of victims and witnesses, provided that the
measures
are consistent with the rights of the accused” (emphasis added). Rule
75(A) of the
Rwanda Court is almost identical, but instead refers to the “privacy and
security” of
the victims and witnesses (emphasis added). Paragraph (B) of Rule 75 in each
case deals
with measures that the Court may adopt in camera for the purpose of protecting
the right
to privacy and protection/security of the victims and witnesses. Such measures
include:
_ the deletion of names and identifying information from the
Chamber’s/Tribunal’s
public records;
_ the non-disclosure to the public of any records identifying the victim;
_ the giving of testimony through image- or voice- altering devices or closed-
circuit
television;
_ the assignment of a pseudonym;
_ closed sessions; and
_ appropriate measures to facilitate the testimony of vulnerable victims and
witnesses,
such as one-way closed-circuit television.
As can be seen from the Rules of Procedure of these two Tribunals, the
guiding principle is that measures for the protection of victims and witnesses
must be
“consistent with the rights of the accused”, and that, to this end, they do not
foresee
permanent anonymity either of victims or of witnesses as between the parties
themselves, their identity having to be disclosed in sufficient time prior to the
trial to
allow adequate time for the preparation of the trial. The approach adopted by
the
International Criminal Tribunals provides an interesting solution to difficult
problems
of security, while at the same time safeguarding to right to an effective defence.
*****
Lawyers 289
Recourse to anonymous witnesses was to the fore in the case of Kostovski
examined under article 6(1) and (3)(d) of the European Convention on Human
Rights,
where two such witnesses had been heard by the police and, in one case, also by
the
examining magistrate, but were not heard at the applicant’s trials. Not only were
the
witnesses “not heard at the trials but also their declarations were taken ... in the
absence
of Mr Kostovski and his counsel” and, therefore, “at no stage could they be
questioned
by him or on his behalf”.165 The defence had, inter alia, the possibility of
submitting
written questions “indirectly through the examining magistrate”, but “the nature
and
scope of the questions it could put ... were considerably restricted by reason of
the
decision that the anonymity of the authors of the statements should be
preserved”.166
This fact “compounded the difficulties facing the applicant”, because, “if the
defence is
unaware of the identity of the person it seeks to question, it may be deprived of
the very
particulars enabling it to demonstrate that he or she is prejudiced, hostile or
unreliable”.
In the view of the European Court, “the dangers inherent in such a situation are
obvious”.167
Another aspect was that “each of the trial courts was precluded by the absence
of the said anonymous persons from observing their demeanour under
questioning and
thus forming its own impression of their reliability”.168 The applicant, who had a
long
criminal record, was convicted of holding up a bank, and the Government
defended the
use of anonymous witnesses by citing the need to balance the interests of
society, the
accused and the witnesses themselves, in view of the increasing frequency of
intimidation of witnesses in the Netherlands. In this particular case, the authors
of the
statements on which the applicant’s conviction was based “had good reason to
fear
reprisals”.169
Although the Court admitted that the Government’s line of argument was
“not without force”, it was “not decisive”, and it went on to make the following
statement, which merits quoting in extenso:
“Although the growth in organized crime doubtless demands the
introduction of appropriate measures, the Government’s submissions
appear to the Court to lay insufficient weight on what the applicant’s
counsel described as ‘the interest of everybody in a civilised society in a
controllable and fair judicial procedure’. The right to a fair administration
of justice holds so prominent a place in a democratic society ... that it
cannot be sacrificed to expediency. The Convention does not preclude
reliance, at the investigation stage of criminal proceedings, on sources such
as anonymous informants. However, the subsequent use of anonymous
statements as sufficient evidence to found a conviction, as in the present
case, is a different matter. It involved limitations on the rights of the
defence which were irreconcilable with the guarantees contained in
Article 6. In fact, the Government accepted that the applicant’s conviction
was based ‘to a decisive extent’ on the anonymous statements.”170
165Eur. Court HR, Kostovski Case v. the Netherlands, judgment of 20 November 1989, Series A, No. 166, p.
20, para. 42.
166Ibid., loc. cit.
167Ibid.
168Ibid., para. 43.
169Ibid., p. 21, para. 44.
170Ibid., loc. cit.
It followed that article 6(3)(d) taken together with article 6(1) of the European
Convention had been violated in this case.
Testimony of anonymous victims and witnesses during trial is unlawful,
but can in exceptional cases be used in the course of criminal
investigations. The identity of anonymous victims and witnesses must be
disclosed in sufficient time prior to the beginning of the court proceedings
to ensure a fair trial.
3.9 The right to free assistance of an interpreter
According to article 14(3)(f) of the Covenant and article 6(3)(e) of the
European Convention, everyone shall be entitled to “have the free assistance of
an
interpreter if he cannot understand or speak the language used in court”. Article
8(2)(a)
of the American Convention guarantees “the right of the accused to be assisted
without
charge by a translator or interpreter, if he does not understand or does not
speak the
language of the tribunal or court”. Articles 20(4)(f) and 21(4)(f) of the respective
Statutes of the International Criminal Tribunals for Rwanda and the former
Yugoslavia
also provide for the right to “free assistance of an interpreter” of an accused not
understanding or speaking the language of these Tribunals.
*****
In the words of the Human Rights Committee, the free assistance of an
interpreter is a right that is “of basic importance in cases in which ignorance of
the
language used by a court or difficulty in understanding may constitute a major
obstacle
to the right of defence” and it is moreover a right that “is independent of the
outcome
of the proceedings and applies to aliens as well as to nationals”.171 However, the
services of an interpreter must be available only “if the accused or the defence
witnesses
have difficulties in understanding, or in expressing themselves in the court
language”.172
It is not a violation of article 14 that the States parties make provision for the use
of only
one official court language, and the requirement of a fair hearing does not
“mandate
States parties to make available to a citizen whose mother tongue differs from
the
official court language, the services of an interpreter, if this citizen is capable of
expressing himself adequately in the official language”.173
It follows that neither the right to a fair trial in article 14 nor article 14(3)(f) had
been violated where a French citizen of Breton mother tongue, but who also
spoke
French, was refused the services of an interpreter during court proceedings
against him
in France. In this case, the author had “not shown that he, or the witnesses
called on his
behalf, were unable to address the tribunal in simple but adequate French”.174
The
Lawyers 291
13.
172Communication No. 219/1986, D. Guesdon v. France (Views adopted on 25 July 1990), in UN doc. GAOR,
A/45/40 (vol. II),
p. 67, para. 10.2.
173Ibid., loc. cit.
174Ibid., para. 10.3.
Committee explained that the right to a fair trial in article 14(1) as read in
conjunction
with article 14(3)(f) of the Covenant “does not imply that the accused be
afforded the
possibility to express himself in the language which he normally speaks or
speaks with a
maximum of ease”; on the contrary, “if the court is certain”, as it was in this
case, “that
the accused is sufficiently proficient in the court’s language, it is not required to
ascertain whether it would be preferable for the accused to express himself in a
language other than the court language”.175
*****
The European Court of Human Rights has held with regard to article 6(3)(e)
of the European Convention that the term “free” denotes “once and for all
exemption
or exoneration”.176 In its view, “it would run counter not only to the ordinary
meaning
of [the term] free”, but also “to the object and purpose” of article 6, and in
particular of
article 6(3)(e), “if this latter paragraph were to be reduced to the guarantee of a
right to
provisional exemption from payment – not preventing the domestic courts from
making a convicted person bear the interpretation costs –, since the right to a
fair trial
which Article 6 seeks to safeguard would itself be adversely affected”.177 Article
6(3)(e)
as construed in the context of the right to a fair trial as guaranteed by article
6(1),
consequently
“signifies that an accused who cannot understand or speak the language
used in court has the right to the free assistance of an interpreter for the
translation or interpretation of all those documents or statements in the
proceedings instituted against him which it is necessary for him to
understand in order to have the benefit of a fair trial”.178
Consequently, where the courts of the Federal Republic of Germany had
attributed the costs of the interpretation to the applicants, article 6(3)(e) of the
Convention was found to have been violated.179
An accused person not able to speak and understand the language used
by the authorities in the course of the criminal proceedings against him or
her has the right to free interpretation and translation of all documents in
these proceedings. This right is independent of the final outcome of the
trial.
175Ibid., loc. cit.
176Eur. Court HR, Case of Luedicke, Belkacem and Koç, judgment of 28 November 1978, Series A, No. 29,
para. 40 at p. 17.
177Ibid., para. 42 at p. 18.
178Ibid., p. 20, para. 48.
179Ibid., pp. 20-21, paras. 49-50.
3.10 The right to a reasoned judgement

Although not expressly mentioned in the four main human rights treaties, the
right to a reasoned judgement is inherent in the provisions regarding a “fair
trial”,
including the right to a public judgement. Article 22(2) and article 23(2) of the
former
Yugoslavia both stipulate that the judgements of these Tribunals “shall be
accompanied
by a reasoned opinion in writing, to which separate or dissenting opinions may
be
appended”. According to article 74(5) of the Statute of the International Criminal
Court, the decisions of the Trial Chamber “shall be in writing and shall contain a
full
and reasoned statement of the Trial Chamber’s finding on the evidence and
conclusions”.
*****
The Human Rights Committee has examined numerous complaints
concerning the failure of courts to issue a reasoned judgement. These
complaints have
been examined under article 14(3)(c) and (5) of the Covenant, which “are to be
read
together, so that the right to review of conviction and sentence must be made
available
without delay”. According to the Committee’s case-law under article 14(5),
“a convicted person is entitled to have, within reasonable time, access to
written judgements, duly reasoned, for all instances of appeal in order
to enjoy the effective exercise of the right to have conviction and sentence
reviewed by a higher tribunal according to law”.180
In the case of Francis, for instance, where the author had received a death
sentence, the Court of Appeal had failed to issue a written judgement more than
nine
years after it dismissed his appeal, a delay that quite evidently was not
reasonable and
violated article 14(3)(c) and (5) of the Covenant.181 The delay in the submission
of
written judgements has in many cases implied that prisoners in Jamaica have not
been
able to pursue their right to appeal to the Privy Council.
*****
According to the established case-law of the European Court of Human
Rights, which reflects “a principle linked to the proper administration of justice,
judgments of courts and tribunals should adequately state the reasons on which
they are
based”. However, the “extent to which this duty to give reasons applies may
vary
according to the nature of the decision and must be determined in the light of
the
circumstances of the case”.182 Furthermore, although article 6(1) of the European
Convention on Human Rights “obliges courts to give reasons for their decisions,
it
cannot be understood as requiring a detailed answer to every argument”.183
Lawyers 293
180Communication No. 320/1988, V. Francis v. Jamaica (Views adopted on 24 March 1993), in UN doc.
GAOR, A/48/40
181Ibid., loc. cit. See also e.g. Communication No. 282/1988, L. Smith v. Jamaica (Views adopted on 31
March 1993), ibid., p. 35,
para. 10.5.
182Eur. Court HR, Case of García Ruiz v. Spain, judgment of 21 January 1999, Reports 1999-I, p. 97, para.
26.
183Ibid., para. 26 at p. 98.
Consequently, a court may thus, “in dismissing an appeal, ... simply endorse the
reasons
for the lower court’s decision”.184 In the case of García Ruiz, the applicant
complained
that the Madrid Audiencia Provincial failed to give him any reply to his
arguments.
However, the European Court noted that the applicant “had the benefit of
adversarial
proceedings” and that, at the various stages of those proceedings “he was able
to
submit the arguments he considered relevant to his case”; thus both the “factual
and
legal reasons for the first-instance decision dismissing his claim were set out at
length”.185 As to the judgement on appeal of the Audiencia Provincial, it
“endorsed the
statement of the facts and the legal reasoning set out in the judgment at first
instance in
so far as they did not conflict with its own findings” and, consequently, the
applicant
could not “validly argue that this judgment lacked reasons, even though in the
present
case a more substantial statement of reasons might have been desirable”.186
In a case that was examined under article 6(1) and (3)(b) of the European
Convention on Human Rights, the applicant complained that he did not have
available
a copy of the complete written judgement of the first-instance court at the time
when he
had to decide whether or not to lodge an appeal. The European Court of Human
Rights
concluded that this failure did not violate the Convention. A copy of the
judgement in
abridged form was available for inspection at the registry of the Regional Court,
and a
copy would have been made available to the defence had it so requested; at
least the
operative part of the judgement was read out in public in the presence of the
applicant’s
defence counsel. The Court expressed no views on the practice as such in the
Netherlands with regard to judgements in abridged form which would be
supplemented with an elaborated version only if an appeal was lodged. In the
circumstances of the present case it concluded basically that the issues on which
the
applicant based his defence were addressed in the judgement in its abridged
form (a fact
that the applicant had not denied) and that it could not therefore be said that the
applicant’s defence rights had been “unduly affected by the absence of a
complete
judgment”.187
3.10.1 The lack of a reasoned judgement and capital punishment
cases
The Human Rights Committee has consistently affirmed “that in all cases, and
especially in capital cases, the accused is entitled to trial and appeal proceedings
without
undue delay, whatever the outcome of the judicial proceedings may turn out to
be”,188
and, as seen above, where the lack of a reasoned judgement had prevented the
author
from proceeding with his appeal, article 14(3)(c) and (5) was found to have been
violated. The violation of these provisions has the further consequence of
violating the
right to life as protected by article 6 of the Covenant, since, according to General
Comment No. 6, it follows from the express terms of article 6 that the death
penalty
184Ibid., loc. cit.
185Ibid., p. 99, para. 29.
186Ibid., loc. cit.
187Eur. Court HR, Case of Zoon v. the Netherlands, judgment of 7 December 2000, paras. 39-51 of the text
of the judgment as published
on the Court’s web-site: http://www.echr.coe.int/.
A/48/40 (vol. II),
p. 89, para. 8.3.
“... can only be imposed in accordance with the law in force at the time of
the commission of the crime and not contrary to the Covenant. The
procedural guarantees therein prescribed must be observed, including the
right to a fair hearing by an independent tribunal, the presumption of
innocence, the minimum guarantees for the defence, and the right to
review by a higher tribunal. These rights are applicable in addition to the
particular right to seek pardon or commutation of the sentence.”189
Consequently, where “the final sentence of death” has been “passed without
having met the requirements” of article 14, there is also a violation of article 6 of
the
Covenant, which provides in its second paragraph that a sentence of death may
not be
imposed “contrary to the provisions of the present Covenant”.190
*****
The African Commission on Human and Peoples’ Rights has likewise held
that the execution of 24 soldiers constituted an “arbitrary deprivation” of their
right to
life as guaranteed by article 4 of the African Charter on Human and Peoples’
Rights,
since their trial had violated the due process guarantees laid down by article 7(1)
(a) of
the Charter.191
Courts must at all times give reasons for their decisions, although they
may not have to answer each argument made by the accused.
The convicted person is entitled to receive a reasoned judgement within a
reasonable time; such judgement is essential for the purpose of lodging
appeals.
The strict enforcement of these rights is particularly important in capital
punishment cases.
3.11 Freedom from ex post facto laws/
The principle of nullum crimen sine lege
Article 15(1) of the International Covenant, article 7(2) of the African Charter,
article 9 of the American Convention, article 7(1) of the European Convention
and
article 22 of the Statute of the International Criminal Court all guarantee – in
slightly
different terms – the right not to be held guilty on account of any act or omission
that
did not constitute a criminal offence at the time it was committed. Article 15(1)
of the
Covenant and article 7(1) of the European Convention refer to “national and
international law” in this respect, while article 9 of the American Convention
speaks
Lawyers 295
189United Nations Compilation of General Comments, pp. 115-116, para. 7. See also Communication No.
356/1989, T. Collins v. Jamaica
(Views adopted on 25 March 1993), in UN doc. GAOR, A/48/40 (vol. II), p. 89, para. 8.4.
A/48/40 (vol. II),
p. 89, para. 8.4.
191ACHPR, Forum of Conscience (on behalf of 24 soldiers) v. Sierra Leone, Communication No. 223/98,
session, 23 October – 6 November 2000, para. 19 of the text of the decision published at
only of “the applicable law”. Article 22 of the Statute of the International Criminal
Court relates to crimes “within the jurisdiction of the Court”.
The prohibition on retroactivity of criminal law is fundamental in a society
governed by the rule of law, one aspect of which is to ensure legal
predictability or
foreseeability, and thus, legal security for individuals. Experience shows that,
in the
course of severe crisis situations, there has often been a temptation to penalize
certain
behaviour retroactively, but, as can be seen in article 4(2) of the International
Covenant,
article 27(2) of the American Convention and article 15(2) of the European
Convention, the right to freedom from ex post facto laws has been made
non-derogable, and must therefore apply with full force even in the direst of
emergencies.
*****
The Human Rights Committee found a violation of article 15(1) of the
Covenant in a case where the author had been sentenced to eight years’
imprisonment
for “subversive association”, although the acts concerned were lawful when
committed.192
*****
In the case of Media Rights Agenda and Others against Nigeria, the African
Commission on Human and Peoples’ Rights had to consider the compatibility of
Newspaper Decree No. 43 of 1993 with article 7(2) of the African Charter. This
Decree, which had retroactive effect, inter alia made it an offence punishable
with a
heavy fine and/or a long term of imprisonment for a person to own, publish or
print a
newspaper not registered under the Decree. The Commission condemned “the
literal,
minimalist interpretation” of the Charter provided by the Government, which had
argued that there had been no violation of article 7(2) since the retroactive
aspect of the
Decree had not been enforced. In the view of the Commission, however, article
7(2)
“... must be read to prohibit not only condemnation and infliction of
punishment for acts which did not constitute crimes at the time they were
committed, but retroactivity itself. It is expected that citizens must take the
laws seriously. If laws change with retroactive effect, the rule of law is
undermined since individuals cannot know at any moment if their actions
are legal. For a law-abiding citizen, this is a terrible uncertainty, regardless
of the likelihood of eventual punishment.”193
GAOR, A/36/40,
p. 119, para. 16.
193ACHPR, Media Rights Agenda and Others v. Nigeria, Communications Nos. 105/93, 128/94, 130/94 and
152/96, decision adopted on
31 October 1998, paras. 58-59 of the text of the decision as published at
http://www1.umn.edu/humanrts/africa/comcases/105-93_128-94_130-94_152_96.html.
The Commission added, furthermore, that “unfortunately” it could not be
totally confident that no person or newspaper had as yet suffered under the
retroactivity of Decree No. 43. In its view potential “prosecution is a serious
threat”
and “an unjust but un-enforced law undermines ... the sanctity in which the law
should
be held”. Consequently, Decree No. 43 violated article 7(2) of the African
Charter.194
*****
The European Court has dealt with a number of varied cases under article
7(1). However, only the basic principles of the Court’s interpretation of this
article can
be dealt with here. To the European Court, article 7(1) not only prohibits “the
retrospective application of the criminal law to an accused’s disadvantage” but
also
“embodies, more generally, the principle that only the law can define a crime
and
prescribe a penalty (nullum crimen, nulla poena sine lege), as well as the
principle that the
criminal law must not be extensively construed to an accused’s detriment, for
instance,
by analogy”.195 This important qualification implies that “an offence must be
clearly
defined in law”, a condition which is “satisfied where the individual can know
from the
wording of the relevant provision and, if need be, with the assistance of the
courts’
interpretation of it, what acts and omissions will make him liable”.196 The Court
has also
held that, where new provisions of a Criminal Code had been applied to the
advantage
rather than the detriment of the accused person, article 7(1) of the Convention
had not
been violated.197
3.12 The principle of ne bis in idem, or prohibition
of double jeopardy
Article 14(7) of the International Covenant contains the prohibition of double
jeopardy, or the principle of ne bis in idem, according to which “no one shall be
liable to
be tried or punished again for an offence for which he has already been finally
convicted
or acquitted in accordance with the law and penal procedure of each country”.
Article
8(4) of the American Convention guarantees this principle in the following words:
“An
accused person acquitted by a nonappealable judgement shall not be subjected
to a
new trial for the same cause” (emphasis added). Protocol No. 7 to the European
Convention provides in its article 4(1) that “no one shall be liable to be tried or
punished again in criminal proceedings under the jurisdiction of the same State
for an
offence for which he has already been finally acquitted or convicted in
accordance with
the law and penal procedure of that State”. However, according to article 4(2) of
the
Protocol, these provisions “shall not prevent the re-opening of the case ... if there
is
evidence of new or newly discovered facts, or if there has been a fundamental
defect in
the previous proceedings, which would affect the outcome of the case”. The
principle
of ne bis in idem is non-derogable under the European Convention (cf. art. 4(3)
of
Protocol No. 7).
Lawyers 297
194Ibid., para. 60.
195Eur. Court HR, Case of Kokkinakis v. Greece, judgment of 25 May 1993, Series A, No. 260-A, p. 22, para.
52.
196Ibid., loc. cit.
197Eur. Court HR, Case of G. v. France, judgment of 27 September 1995, Series A, No. 325-B, p. 38, paras.
24-26.
Lastly, articles 9 and 10 of the respective Statutes of the International Criminal
Tribunals for Rwanda and the former Yugoslavia, as well as article 20 of the
Statute of
the International Criminal Court, also provide protection against double jeopardy
for
crimes within the jurisdiction of the respective courts. However, under the
Statutes of
the Tribunals for Rwanda and the former Yugoslavia, exceptions exist for persons
having been tried by national courts for an act characterized as “an ordinary
crime”
rather than a “serious” violation of international humanitarian law and, further, if
“the
national court proceedings were not impartial or independent, were designed to
shield
the accused from international criminal responsibility, or the case was not
diligently
prosecuted” (see art. 9(2) and art. 10(2) of the respective Statutes). Article 20(3)
of the
Statute of the International Criminal Court also provides for exceptions for such
other
court proceedings which had the “purpose of shielding the person concerned
from
criminal responsibility for crimes within the jurisdiction of the Court”, or if such
proceedings were otherwise “not conducted independently or impartially in
accordance
with the norms of due process recognized by international law and were
conducted in a
manner which, in the circumstances, was inconsistent with an intent to bring the
person
concerned to justice”.
Article 14(7) of the Covenant – like the European Convention – only
prohibits double jeopardy “with regard to an offence adjudicated in a given
State”; it
does not guarantee ne bis in idem “with regard to the national jurisdictions of
two or more
States”.198
It is clear that, when a domestic appellate court has already quashed a second
indictment, thus vindicating the principle of ne bis in idem, there has been no
violation of,
for instance, article 14(7) of the Covenant.199
*****
With regard to the principle of ne bis in idem as guaranteed by article 8(4) of the
American Convention on Human Rights, the Inter-American Court of Human
Rights
has explained that it “is intended to protect the rights of individuals who have
been
tried for specific facts from being subjected to a new trial for the same cause”,
but,
unlike “the formula used by other international rights protection instruments, ...
the
American Convention uses the expression ‘the same cause’, which is amuch
broader term
in the victim’s favour”.200 This means, for instance, that, if a person has been
acquitted
by military courts on charges of treason, it is contrary to article 8(4) of the
Convention
subsequently to try that person in the civil courts, on the same facts, albeit with
a
different qualification such as terrorism.201 Indeed, in the case of Loayza Tamayo,
the
Court also held that the Decree Laws containing the crimes of “terrorism” and
“treason” were in themselves contrary to article 8(4), since they referred “to
actions not
198Communication No. 204/1986, A. P. v. Italy (Decision adopted on 2 November 1987), in UN doc. GAOR,
A/43/40, p. 244,
para. 7.3.
199Communication No. 277/1988, Teran Jijón v. Ecuador (Views adopted on 26 March 1992), GAOR, A/47/40,
p. 272, para. 5.4.
200I-A Court HR, Loayza Tamayo Case v. Peru, judgment of September 17, 1977, OAS doc.
OAS/Ser.L/V/III.39, doc. 5, 1997 Annual
Report I-A Court HR, p. 213, para. 66.
201Ibid., pp. 213-215, paras. 66-77.
strictly defined” which could be “interpreted similarly within both crimes” as was
done
in that particular case.202 In other words, they gave rise to unacceptable legal
insecurity.
*****
The principle of ne bis in idem in article 4 of Protocol No. 7 to the European
Convention was violated in the case of Gradinger, concerning an applicant who
had
already been convicted by an Austrian Regional Court for causing death by
negligence
while driving his car. According to the Regional Court, which based itself on the
Criminal Code, the applicant’s alcohol level was not such that it would have
constituted
an aggravating factor.203 However, the District Attorney disagreed with the
conclusion
and, invoking the Road Traffic Act, imposed a fine on the applicant “with two
weeks’
imprisonment in default, for driving under the influence of drink”.204 The
European
Court was of the view that, although the Criminal Code and the Road Traffic Act
differed both as to “the designation of the offences” and “their nature and
purpose”,
“the impugned decisions were based on the same conduct” thereby constituting
a
violation of the principle of ne bis in idem.205
In the case of Oliveira, however, the outcome was different. The applicant had
been driving on a road covered with ice and snow when her car veered onto the
other
side of the road, hitting one car and colliding with a second car whose driver was
seriously injured. A police magistrate subsequently convicted the applicant on
the basis
of Sections 31 and 32 of the Federal Road Traffic Act of “failing to control her
vehicle, as she had not adapted her speed to the road conditions”; she was
sentenced to
a fine of 200 Swiss francs (CHF).206 Subsequently, the District Attorney’s Office
issued
a penal order fining the applicant CHF 2000 “for negligently causing physical
injury” contrary to article 125 of the Swiss Criminal Code; on appeal this fine
was
reduced to CHF 1,500, and, after deduction of the first fine of CHF 200, to CHF
1,300.207 Before the European Court of Human Rights, the applicant complained
of a
violation of article 4 of Protocol No. 7, arguing that the same incident had led to
her
being convicted twice, first for failing to control her vehicle and then for
negligently
causing physical injury.208
In the view of the European Court this is “a typical example of a single act
constituting various offences (concours idéal d’infractions)”, and the
“characteristic feature
of this notion is that a single criminal act is split up in two separate offences”; in
such
cases “the greater penalty will usually absorb the lesser one”.209 In the view of
the Court,
however,
Lawyers 299
202Ibid., p. 213, para. 68.
203Eur. Court HR, Case of Gradinger v. Austria, judgment of 23 October 1995, Series A, No. 328-C, p. 66,
para. 55.
204Ibid., p. 55, para. 9.
205Ibid., p. 66, para. 55.
206Eur. Court HR, Case of Oliveira v. Switzerland, judgment of 30 July 1998, Reports 1998-V, p. 1994, para.
10; emphasis added.
207Ibid., paras. 11-12; emphasis added.
208Ibid., p. 1996, para. 22.
209Ibid., p. 1998, para. 26.
“there is nothing in that situation which infringes article 4 of Protocol
No. 7 since that provision prohibits people being tried twice for the same
offence whereas in cases concerning a single act constituting various
offences (concours idéal d’infractions) one criminal act constitutes two separate
offences”.210
The Court added, however, that it “would admittedly have been more
consistent with the principles governing the proper administration of justice for
sentence in respect of both offences, which resulted from the same criminal act,
to have
been passed by the same court in a single set of proceedings”; however, the fact
that this
was not done in this case was “irrelevant as regards compliance with” article 4 of
Protocol No. 7, “since that provision does not preclude separate offences, even if
they
are part of a single act, being tried by different courts, especially where, as in
the present
case, the penalties were not cumulative, the lesser being absorbed by the
greater”.211
The Oliveira case was “therefore distinguishable from the case of Gradinger, ... in
which
two different courts came to inconsistent findings on the applicant’s blood
alcohol
level”.212 There had not, consequently, been a violation of article 4 of protocol
No. 7 in
this case.
Everyone has the right not to be convicted for conduct that did not
constitute a criminal offence at the time it was committed. This right
applies at all times and can never be derogated from.
The prohibition of ex post facto laws is essential in order to ensure legal
predictability, which means that laws must be clear enough to guide
the conduct of the individual, who must be able to know, possibly with
some legal help, what conduct is criminal and what is not.
The right not to be tried twice for the same criminal offence is guaranteed
by international law, as a minimum within one and the same State. In
Europe, the principle of ne bis in idem does not rule out a person’s being
tried for separate offences originating in a single criminal act.
210Ibid., loc. cit.
211Ibid., para. 27.
212Ibid., para. 28. For other cases concerning the principle of ne bis in idem see e.g. Eur. Court HR, Case of
Franz Fischer v. Austria,
judgment of 29 May 2001; for the text see http://hudoc.echr.coe.int; and Eur. Court HR, Ponsetti and
Chesnel v. France, decision of 14
September 1999, Reports 1999-VI.
4. Limits on Punishment
4.1 The right to benefit from a lighter penalty
Article 15(1) of the International Covenant and article 9 of the American
Convention outlaw the imposition of a penalty heavier than the one that was
applicable
at the time when the criminal offence was committed, and provide that if,
subsequent
to the commission of the offence, provision is made by law for the imposition of a
lighter penalty, the offender shall benefit therefrom. These provisions cannot be
derogated from even in public emergencies (cf. article 4(2) of the International
Covenant and article 27(2) of the American Convention). The African Charter is
silent
on these questions, while article 7(1) of the European Convention is limited to
the
proscription of recourse to penalties that are heavier than those applicable at the
time
the crime was committed; this provision too is non-derogable (cf. art. 15(2) of
the
European Convention).
The question of preventive measures:
The case of Welch
The case of Welch was examined under article 7(1) of the European Convention and
concerned an applicant who had received a long prison sentence for drug offences
and who, in addition, had been the subject of a confiscation order based on a law that
had entered into force after the commission of the offences concerned. Failure to pay
the money would have made the applicant liable to serve a consecutive sentence of
two years’ imprisonment. Recalling that the term “penalty” is an “autonomous”
notion under the Convention and “looking behind appearances to the realities of the
situation”, the European Court concluded that article 7(1) had been violated in this
case, since “the applicant faced more far-reaching detriment as a result of the order
than that to which he was exposed at the time of the commission of the offences for
which he was convicted”.213 This conclusion did not mean that the Court opposed
the recourse to severe confiscatory measures “in the fight against the scourge of drug
trafficking”, only that it stigmatized the retroactive application thereof.214
4.2 Consistency with international legal standards
Other limits on the right to impose penalties in connection with criminal
convictions flow from the terms of international human rights law in general, and
concern, most particularly, the prohibition on corporal punishment and the
severe
restrictions on, and outlawing of, recourse to capital punishment.
Lawyers 301
213Eur. Court HR, Case of Welch v. the United Kingdom, judgment of 9 February 1995, Series A, No. 307-A,
p. 14, para. 35.
214Ibid., pp. 14-15, para. 36.
4.2.1 Corporal punishment
It will be recalled that inter alia article 7 of the International Covenant, article 5
of the African Charter, article 5(2) of the American Convention and article 3 of
the
European Convention all outlaw recourse to torture, cruel and/or inhuman or
degrading treatment or punishment. This prohibition is valid at all times and
allows for
no limitations.
*****
The Human Rights Committee has observed that the prohibition in article 7
“relates not only to acts that cause physical pain but also to acts that cause
mental
suffering to the victim” and that, moreover,
“the prohibition must extend to corporal punishment, including
excessive chastisement ordered as punishment for a crime or as an
educative or disciplinary measure”.215
It is not clear, however, what the Committee here means by “excessive
chastisement”; but to judge from the Committee members’ questions and
recommendations to the States parties in connection with consideration of the
periodic
reports, they regard the use of corporal punishment as an inappropriate form of
chastisement that is contrary to article 7 and should be abolished.216
*****
The case of Tyrer brought under the European Convention on Human Rights
concerned the imposition of three strokes with a cane on an adolescent, a
punishment
ordered by a juvenile court in the Isle of Man. The caning “raised, but did not cut,
the
applicant’s skin and he was sore for about a week and a half afterwards”.217 The
European Court concluded that “the element of humiliation attained the level
inherent
in the notion of ‘degrading punishment’” and was therefore contrary to article 3
of the
European Convention.218 The Court expressed its view on judicial corporal
punishment in the following terms:
“The very nature of judicial corporal punishment is that it involves one
human being inflicting physical violence on another human being.
Furthermore, it is institutionalised violence, that is in the present case
violence permitted by the law, ordered by the judicial authorities of the
State and carried out by the police authorities of the State. ... Thus,
although the applicant did not suffer any severe or long-lasting physical
effects, his punishment – whereby he was treated as an object in the power
215General Comment No. 20 (Art. 7) , United Nations Compilation of General Comments, p. 139, para. 5;
emphasis added.
216See recommendations as to the Jamaican Flogging Regulation Act, 1903 and the Jamaican Crime
(Prevention of) Act, 1942,
GAOR, A/53/40 (vol. I), p. 17, para. 83; as to flogging, amputation and stoning in the Sudan, see ibid., p. 23,
para. 120. See also
questions asked with regard to Australia, in UN doc. GAOR, A/38/40, p. 29, para. 144; and, as to Saint
Vincent and the Grenadines,
GAOR, A/45/40 (vol. I), p. 61, para. 280.
217Eur. Court HR, Case of Tyrer v. the United Kingdom, judgment of 25 April 1978, Series A, No. 26, p. 7,
para. 10.
218Ibid., p. 17, para. 35.
of the authorities – constituted an assault on precisely that which it is one
of the main purposes of Article 3 to protect, namely a person’s dignity and
physical integrity.”219
4.2.2 Capital punishment
In international human rights law, recourse to capital punishment is
surrounded by numerous safeguards aimed at limiting and eventually abolishing
its use.
For instance, article 6(2) of the International Covenant on Civil and Political
Rights
allows the imposition of the death penalty only “for the most serious crimes”, a
provision that has led the Human Rights Committee to conclude that, where the
death
penalty was imposed for a conviction of aggravated robbery, the mandatory
death
sentence violated article 6(2); this was so since the domestic court could not
take into
consideration mitigating circumstances such as the fact that the use of firearms
in this
case “did not produce the death or wounding of any person”.220 Other safeguards
contained in article 6 of the Covenant relate to the prohibition both on imposing
death
sentences “for crimes committed by persons below eighteen years of age” and
on the
carrying out of such sentences on pregnant women. Further, as described above,
according to article 6(2) of the Covenant, death sentences cannot be imposed
“contrary
to the provisions of the ... Covenant”, which means that all the due process
guarantees
must have been respected in the trial leading to the death sentence.
The Second Optional Protocol to the Covenant aims at the abolition of the
death penalty and entered into force on 11 July 1991. As of 8 February 2002
there were
46 States parties to this Protocol.221
*****
Article 4 of the American Convention also contains safeguards against
abusive recourse to capital punishment and it cannot, for instance, “be
reestablished in
states that have abolished it” (art. 4(3)). Further, “in no case shall capital
punishment be
inflicted for political offences or related common crimes”, a limitation that is
particularly important in public emergencies. In addition, the penalty shall not be
inflicted on persons who committed the crime below the age of eighteen or over
seventy years of age, nor shall it be carried out on pregnant women. On 8 June
1990, the
Protocol to the American Convention on Human Rights to Abolish the Death
Penalty
was adopted and, as of 9 April 2002, it had eight ratifications.222 According to
article 2
of this Protocol the States parties may, however, when ratifying or acceding to
the
Protocol, “declare that they reserve the right to apply the death penalty in
wartime, in
accordance with international law, for extremely serious crimes of a military
nature”.
*****
Lawyers 303
219Ibid., p. 16, para. 33.
220Communication No. 390/1990, B. Lubuto (Views adopted on 31 October 1995), in UN doc. GAOR, A/51/40
(vol. II), p. 14,
para. 7.2.
222See the OAS web-site: http://www.oas.org/juridico/english/treaties.html.
The European Convention on Human Rights per se allows for the death
penalty; this follows from article 2(1), which provides that “no one shall be
deprived of
his life intentionally save in the execution of a sentence of a court following his
conviction of a crime for which this penalty is provided by law”. However,
according to
article 1 of Protocol No. 6 to the Convention, “the death penalty shall be
abolished”
and “no one shall be condemned to such penalty or executed”. Yet article 2 of
the
Protocol makes provision for the use of the death penalty “in respect of acts
committed
in time of war or of imminent threat of war”. Once into force, Protocol No. 13 to
the
Convention will, however, outlaw the death penalty at all times. Signed on
3May 2002
in Vilnius, Protocol No. 13 had, as of 14 May 2002, 3 of the 10 ratifications
required for
its entry into force.223
*****
Neither the International Criminal Court nor the International Criminal
Tribunals for Rwanda and the former Yugoslavia can impose the death penalty
(see
art. 77 of the Statute of the International Criminal Court and arts. 23 and 24 of
the
former
Yugoslavia).
Under international human rights law, a heavier penalty cannot be
imposed than that applicable at the time of the commission of the offence.
If a lighter penalty has been introduced since the commission of the
offence, the convicted person shall, however, benefit therefrom.
Punishments must be consistent with international human rights
standards. They must in no circumstances amount to torture, inhuman,
cruel or degrading treatment or punishment. Corporal chastisement is
unlawful to the extent that it amounts to such treatment. Such
chastisement is in general considered inappropriate by the international
monitoring organs.
The use of the death penalty is strictly circumscribed under international
human rights law; if permissible at all, it is limited to the most serious
crimes; and cannot be imposed for crimes committed by persons under
eighteen years of age. Many countries are now legally committed not to
resort to the use of capital punishment in times of peace.
223See http://conventions.coe.int/.
5. The Right of Appeal

Article 14(5) of the Covenant provides that “everyone convicted of a crime
shall have the right to his conviction and sentence being reviewed by a higher
tribunal
according to law”. The existence of a right to appeal is a right guaranteed by the
Covenant itself and its existence is thus not in theory dependent on domestic
law; the
reference to “according to law” refers here exclusively to “the modalities by
which the
review by a higher tribunal is to be carried out”.224 Article 7(1)(a) of the African
Charter
on Human and Peoples’ Rights provides that “every individual shall have the
right to
have his cause heard”, a right which includes “the right to an appeal to
competent
national organs against acts violating his fundamental rights as recognized and
guaranteed by conventions, laws, regulations and customs in force”. Article 8(2)
(h) of
the American Convention on Human Rights stipulates that in criminal
proceedings
“every person is entitled, with full equality [to] the right to appeal the judgment
to a
higher court”. Article 6 of the European Convention does not, per se, guarantee a
right
of appeal,225 but this right is contained in article 2 of Protocol No. 7 to the
Convention,
although it “may be subject to exceptions in regard to offences of a minor
character, as
prescribed by law, or in cases in which the person concerned was tried in first
instance
by the highest tribunal or was convicted following an appeal against acquittal”
(art. 2(2)
of the Protocol).
*****
The African Commission on Human and Peoples’ Rights has held that the
“foreclosure of any avenue of appeal to competent national organs in a criminal
case
attracting punishment as severe as the death penalty clearly violates” article
7(1)(a) of
the African Charter. In the view of the Commission, the lack of appeal in such
cases
also falls short of the standard contained in paragraph 6 of the United Nations
Safeguards guaranteeing protection of the rights of those facing the death
penalty,
which provides that “anyone sentenced to death shall have the right to appeal to
a court
of higher jurisdiction ...”.226 Article 7(1)(a) was thus also violated where the
Nigerian
Government had passed the Civil Disturbances Act whereby it excluded any
review by
any court of law of the “validity of any decision, sentence, judgment ... or order
given or
made, ... or any other thing whatsoever done under this Act”.227 In the particular
case
involving the Constitutional Rights Project acting on behalf of seven men
sentenced to
death, the fundamental rights involved were the rights to life and to liberty and
security
as guaranteed by articles 4 and 6 of the African Charter. The Commission held
that,
while “punishments decreed as the culmination of a carefully conducted criminal
procedure do not necessarily constitute violations of these rights, to foreclose
any
Lawyers 305
224Communication No. R.15/64, C. Salgar de Montejo v. Colombia (Views adopted on 24 March 1982), in UN
doc. GAOR,
A/37/40, p. 173, para. 10.4.
225Eur. Court HR, Case of Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A,
No. 316-B, para. 59 at p. 79.
226ACHPR, Civil Liberties Organisation and Others v. Nigeria, Communication No. 218/98, decision adopted
during the 29th Ordinary session,
23 April – 7 May 2001, para. 33 of the text of the decision as published at
http://www1.umn.edu/humanrts/africa/comcases/218-98.html; the relevant United Nations resolution was
approved by Economic
and Social Council resolution 1984/50 of 25 May 1984.
227ACHPR, Constitutional Rights Project, (on behalf of Zamani Lekwot and six Others) v. Nigeria,
during the 16th session, October 1994, paras. 26-27 of the text of the decision as published at:
avenue of appeal to ‘competent national organs’ in criminal cases bearing such
penalties
clearly violates” article 7(1)(a) of the Charter, “and increases the risk that even
severe
violations may go unredressed”.228 In the case of Forum of Conscience
concerning the trial
and subsequent execution of 24 soldiers, the Commission concluded that the
deprivation of the right to appeal constituted a violation of article 7(1)(a) and
that this
failure to provide due process amounted to an arbitrary deprivation of their lives
contrary to article 4 of the Charter.229
The right to appeal in article 7(1)(a) of the African Charter does not, however,
appear to be limited to criminal proceedings as such in that it allows for appeals
“to
competent national organs” against acts violating one’s “fundamental rights” in
general.
5.1 The right to full review
The Human Rights Committee has made it clear that, regardless of the name
of the remedy or appeal in question, “it must meet the requirements for which
the
Covenant provides”,230 which implies that the review must concern both the
legal and
material aspects of the person’s conviction and sentence. In other words,
in
addition to pure questions of law, the review must provide “for a full evaluation
of the
evidence and the conduct of the trial”.231
In the case of Gómez, the author complained of a violation of article 14(5);
since the Spanish Supreme Court could not re-evaluate evidence, his judicial
review had
thus been incomplete. The State party was not able to refute this allegation and
the
Committee consequently concluded that “the lack of any possibility of fully
reviewing
the author’s conviction and sentence, ... the review having been limited to the
formal or
legal aspects of the conviction, means that the guarantees provided for in article
14,
paragraph 5, of the Covenant have not been met”.232 In yet another case against
Spain,
the same provision was violated since there was no lawyer available to submit
any
grounds of appeal and, therefore, the authors’ appeal “was not effectively
considered by
the Court of Appeal”.233
With regard to leave to appeal, the Committee has however accepted that “a
system not allowing for automatic right to appeal may still be in conformity with”
article 14(5) of the Covenant “as long as the examination of an application for
leave to
appeal entails a full review, that is, both on the basis of the evidence and of the
law, of
228Ibid., para. 28.
229ACHPR, Forum of Conscience (on behalf of 24 soldiers) v. Sierra Leone, Communication No. 223/98,
Session, 23 October – 6 November 2000, para. 19 of the decision as published at
230Communication No. 701/1996, Gómez v. Spain (Views adopted on 20 July 2000), in UN doc. GAOR,
A/55/40 (vol. II), p. 109,
para. 11.1.
231Communications Nos. 623, 624, 626, 627/1995, V. P. Domukovsky et al. v. Georgia (Views adopted on 6
GAOR, A/53/40 (vol. II), p. 111, para. 18.11.
232Communication No. 701/1996, Gómez v. Spain (Views adopted on 20 July 2000), in UN doc. A/55/40 (vol.
II), p. 109,
para. 11.1.
A/52/40 (vol. II),
p. 18, para. 14.3.
the conviction and sentence and as long as the procedure allows for due
consideration
of the nature of the case”.234
5.2 The availability of a judgement
As seen in subsections 3.10 and 3.10.1 above, for the right of appeal to be
effectively available, a convicted person is entitled to have, within a reasonable
time,
access to duly reasoned written judgements; failing the availability of such
judgement,
article 14(5) of the International Covenant has been violated. Article 14(5) has
also been
violated in cases where the defence lawyers have abandoned all grounds of
appeal, and
where the domestic court has not ascertained that this was done in accordance
with the
wishes of the client. However, this jurisprudence does not apply to cases where it
appears that the relevant domestic court “did ascertain that the applicant had
been
informed and accepted that there were no arguments to be made on his
behalf”.235
5.3 Transcripts of the trial
The right to appeal can also be affected by a delay in producing the transcripts
of the trial. Because of such delay in the Pinkney case, the author’s leave to
appeal was
not heard until 34 months after he had applied for leave to appeal, a delay that
“was
incompatible with the right to be tried without undue delay” contrary to article
14(3)(c)
and (5) of the International Covenant.236
5.4 Preservation of evidence
The Committee has further recognized “that in order for the right to review of
one’s conviction to be effective, the State party must be under an obligation to
preserve
sufficient evidential material to allow for” an effective review of one’s
conviction.237
However, it does not see “that any failure to preserve evidential material until
the
completion of the appeals procedure constitutes a violation of” article 14(5), but
only
“where such failure prejudices the convict’s right to a review, i.e. in situations
where the
evidence in question is indispensable to perform such a review”. Moreover, in its
view,
“this is an issue which it is primarily for the appellate courts to consider”.238
Consequently, where the State party’s “failure to preserve the original
confession
statement was made one of the grounds of appeal” and the court dismissed the
appeal
since it had no merit and “without giving further reasons”, the Committee
considered
Lawyers 307
234Communication No. 662/1995, P. Lumley v. Jamaica (Views adopted on 31 March 1999), in UN doc.
p. 145, para. 7.3.
GAOR, A/55/40
(vol. II), p. 129, para. 10.5.
236Communication No. R.7/27, L. J. Pinkney v. Canada (Views adopted on 29 October 1981), in UN doc.
GAOR, A/37/40,
p. 113, para. 35, read in conjunction with p. 103, para. 10.
GAOR, A/55/40
that it was “not in a position to re-evaluate the ... findings on this point” and
concluded
that article 14(5) had not been violated.239
5.5 The right to legal aid
The Committee has consistently held that “it is imperative that legal aid be
available to a convicted prisoner under sentence of death, and that this
applies to all
stages of the legal proceedings”.240 In the case of LaVende, the author had
been denied
legal aid for the purpose of petitioning the Judicial Committee of the Privy
Council,
and, in the opinion of the Committee, this denial constituted a violation not only
of
article 14(3)(d), but also of article 14(5), since it effectively barred him from
obtaining a
review of his conviction and sentence.241
*****
The right to appeal as guaranteed by article 8 (2)(h) of the American
Convention on Human Rights was violated in the case of Castillo Petruzzi et al.
where the
victims had only been able to file an appeal with the Supreme Court of Military
Justice
against the judgement of the lower military court. As noted by the Inter-
American
Court of Human Rights, the right to appeal the judgement as guaranteed by the
Convention “is not satisfied merely because there is a higher court than the one
that
tried and convicted the accused and to which the latter has or may have
recourse”; on
the contrary, for “a true review of the judgment, in the sense required by the
Convention, the higher court must have the jurisdictional authority to take up the
particular case in question”.242 In this case, where the victims had been tried by
a
military court with an appeal possible to the Supreme Court of Military Justice,
“the
superior court was part of the military structure and as such did not have the
independence necessary to act as or be a tribunal previously established by law
with
jurisdiction to try civilians”; consequently, “there were no real guarantees that
the case
would be reconsidered by a higher court that combined the qualities of
competence,
impartiality and independence that the Convention requires”.243
*****
Although the right to appeal is not guaranteed as such by article 6 of the
European Convention on Human Rights, the European Court has consistently
held
that “a Contracting State which sets up an appeal system is required to ensure
that
persons within its jurisdiction enjoy before appellate courts the fundamental
guarantees” of that article; yet “the manner of application of Article 6 to
proceedings
before such courts depends on the special features of the proceedings involved”
and
“account must be taken of the entirety of the proceedings in the domestic legal
order
239Ibid., para. 10.8.
240Communication No. 554/1993, R. LaVende v. Trinidad and Tobago (Views adopted on 29 October 1997),
in UN doc. GAOR,
A/53/40 (vol. II), p. 12, para. 5.8; emphasis added.
241Ibid., pp. 12-13, para. 5.8.
para. 161
243Ibid., loc. cit.
and of the role of the appellate court therein”.244 As previously noted, the right to
appeal is, however, included in article 2 of Protocol No. 7.
International human rights law guarantees the right to appeal against a
conviction. The appeal proceedings must provide a full review of the facts
and the law. Inter alia, the effective exercise of the right to appeal
requires, as a minimum, access within a reasonable time to the written
judgement. It may also require the transcript of the trial, access to
evidential material, and the granting of free legal aid.
It is not sufficient that the right to appeal is exercised before a higher
court; this court must be independent and impartial and administer
justice in accordance with the rules of due process of law.
6. The Right to Compensation
in the Event of a Miscarriage
of Justice
Of the main human rights treaties examined in this chapter, only the
International Covenant on Civil and Political Rights provides expressis verbis for
compensation in case of a miscarriage of justice. Article 14(6) thereof reads:
“When a person has by a final decision been convicted of a criminal
offence and when subsequently his conviction has been reversed or he has
been pardoned on the ground that a new or newly discovered fact shows
conclusively that there has been a miscarriage of justice, the person who
has suffered punishment as a result of such conviction shall be
compensated according to law, unless it is proved that the non-disclosure
of the unknown fact in time is wholly or partly attributable to him.”
As is clear from this text, a pardon must be based on the fact that amiscarriage
of justice has taken place, and, consequently, where a presidential pardon was
instead
motivated by considerations of equity, no question of compensation arises
under
article 14(6) of the Covenant.245
Under the International Covenant on Civil and Political Rights a person
has the right to compensation in case of conclusive evidence that he or
she
has been the victim of a miscarriage of justice. The victim must not have
contributed to the miscarriage of justice. Pardons based on equity do not
give rise to any ground for compensation.
Lawyers 309
244Eur. Court HR, Case of Tolstoy Miloslavsky v. the United Kingdom, judgment of 13 July 1995, Series A,
No. 316-B, p. 79, para. 59.
245Communication No. 89/1981, P. Muhonen v. Finland (Views adopted on 8 April 1985), in UN doc. GAOR,
A/40/40,
pp. 169-170, paras. 11.2-12.
7. The Right to a Fair Trial and

Special Tribunals
In General Comment No. 13, the Human Rights Committee stated with
regard to the creation of military and other special tribunals that
“The provisions of article 14 apply to all courts and tribunals within the
scope of that article whether ordinary or specialized. The Committee notes
the existence, in many countries, of military or special courts which try
civilians. This could present serious problems as far as the equitable,
impartial and independent administration of justice is concerned. Quite
often the reason for the establishment of such courts is to enable
exceptional procedures to be applied which do not comply with normal
standards of justice. While the Covenant does not prohibit such categories
of courts, nevertheless the conditions which it lays down clearly indicate
that the trying of civilians by such courts should be very exceptional and
take place under conditions which genuinely afford the full guarantees
stipulated in article 14.”246
Without explaining what aspect of the proceedings was not in conformity
with article 14, the Human Rights Committee concluded that the Nicaraguan
Peoples’
Tribunals (Tribunales Especiales de Justicia) “did not offer the guarantees of a
fair trial
provided for” in that article. In the case in question the author had been
sentenced to 30
years’ imprisonment on account of his outspoken criticism of the Marxist
orientation
of the Sandinistas.247
*****
It is clear from the case-law of the African Commission on Human and
Peoples’ Rights that the provisions of article 7 of the African Charter should be
considered to be non-derogable and that all tribunals, including military courts,
must be
impartial and ensure fair legal proceedings at all times.248
*****
The Inter-American Court of Human Rights concluded that the military
courts permitted to try civilians for treason in Peru violated article 8(1) of the
American
Convention on Human Rights because they were not independent and impartial
and
because, since the judges were “faceless”, the defendants had no possibility of
knowing
their identity and of assessing their competence.249
*****
247Communication No. 328/1988, R. Z. Blanco v. Nicaragua (Views adopted on 20 July 1994), in UN doc.
GAOR, A/49/40
(vol. II), p. 18, para. 10.4.
248See e.g. ACHPR, Civil Liberties Organisation and Others v. Nigeria, Communication No. 218/98, decision
adopted during the 29th Ordinary
session, 23 April – 7 May 2001, p. 3 of the decision as published at
249I-A Court HR, Castillo Petruzzi et al. judgment of May 30, 1999, Series C, No. 52, pp. 196-197, paras. 129-
134.
The European Court of Human Rights held in several cases that National
Security Courts trying civilians in Turkey lacked the independence and
impartiality
required by article 6(1) of the European Convention on Human Rights and could
not,
consequently, guarantee the applicants’ right to a fair hearing. The reason why
the
National Security Courts failed to comply with the requirements of article 6(1) in
this
respect was that one of their three members was a military judge belonging to
the army
and subject to military discipline and assessment reports; further, the term of
office of
National Security Court judges was only a renewable period of four years.250
*****
What follows from these few examples of the international case-law on this
matter is that all courts trying civilians, whether ordinary or special, including
military
tribunals, must be independent and impartial so as to be able to guarantee a fair
hearing
to the accused at all times.
All courts trying civilians, whether ordinary or special courts, must at all
times be independent and impartial and respect due process guarantees.
8. The Right to a Fair Trial in
Public Emergencies
The right to due process in public emergencies will be dealt with in Chapter
16. Suffice it to point out here that, although the articles on fair trial in the
International
Covenant and the American and European Conventions do not, as such, form
part of
the list of non-derogable rights in article 4(2) of the Covenant, article 27(2)of the
American Convention and article 15(2) of the European Convention, this in no
way
means that these provisions can be derogated from at will.
*****
With regard to the International Covenant on Civil and Political Rights, the
Human Rights Committee has stated in its General Comment No. 13 that
“If States parties decide in circumstances of a public emergency as
contemplated by article 4 to derogate from normal procedures required
under article 14, they should ensure that such derogations do not exceed
those strictly required by the exigencies of the actual situation, and respect
the other conditions in paragraph 1 of article 14.”251
Lawyers 311
250Eur. Court HR, Case of Çiraklar v. Turkey, judgment of 28 October 1998, Reports 1998-VII, pp. 3072-
3074, paras. 37-41.
The Committee has also made it abundantly clear that the “right to be tried
by an independent and impartial tribunal is an absolute right that may
suffer no
exception”.252 It is further beyond doubt that the basic fair trial guarantees laid
down in
article 14 must be ensured even in severe crisis situations, although the
Committee has
accepted “that it would simply not be feasible to expect that all provisions of
article 14
can remain fully in force in any kind of emergency”.253 However, it has not yet
defined
what aspect, or aspects, of the fair trial guarantees might possibly not be
applicable in
public emergencies threatening the life of the nation.
*****
Since, as already noted above, the African Commission on Human and
Peoples’ Rights considered that article 7 of the African Charter on Human and
Peoples’
Rights should be considered non-derogable, it follows that the fair trial
guarantees
contained therein must be ensured at all times.254
*****
The Inter-American Court has emphasized that “the guarantees to which
every person brought to trial is entitled must be not only essential but also
judicial”, a
conception that implies “the active involvement of an independent and impartial
judicial body having the power to pass on the lawfulness of measures adopted in
a state
of emergency”.255 In the case of Castillo Petruzzi “the military tribunals that tried
the
alleged victims for the crimes of treason did not meet the requirements implicit
in the
guarantees of independence and impartiality” that article 8(1) “recognizes as
essentials
of due process of law”.256 More details about the interesting inter-American
jurisprudence relating to article 27 of the American Convention will be given in
Chapter
16 of this Manual.
The right to enjoy a fair trial must also be guaranteed in public
emergencies threatening the life of the nation, although possibly some
aspects thereof may be subject to limited enforcement.
The right to be tried by an independent and impartial tribunal
must be guaranteed at all times, including in public emergencies
threatening the life of the nation.
252Communication No. 263/1987, M. González del Río v. Peru (Views adopted on 28 October 1992), in UN
doc. GAOR, A/48/40
253See UN doc. GAOR, A/49/40 (vol. I), p. 5, para. 24. This was prompted by a request by the Sub-
Commission on Prevention
of Discrimination and Protection of Minorities that a new optional protocol be elaborated to include, inter
alia, article 14 in the list of
non-derogable rights.
254See e.g. ACHPR, Civil Liberties Organisation and Others v. Nigeria, Communication No. 218/98, decision
adopted during the 29th Ordinary
session, 23 April – 7 May 2001, p. 3 of the decision as published at
This chapter has explained the principal rights that must be effectively
ensured to accused persons in the determination of any criminal charges against
them,
rights which must be protected from the beginning of the trial proceedings until
conviction or acquittal. It has also shown the indispensable role played by
domestic
judges in the fair administration of justice, a role which runs like a thread
through
Chapters 4 onwards. The essential role both of prosecutors and of defence
lawyers has
also been emphasized whenever relevant.
But the national judge is not only responsible for his or her own actions stricto
sensu. He or she is also to some extent responsible for those of prosecutors and
defence
lawyers, to the extent that, where the judge has any indication that the
prosecutor has
erred in the course of the criminal inquiry by resorting to unlawful means of
investigation, or that the defence lawyer has not duly consulted with his or her
client or
simply has not acted professionally, that judge has a duty to intervene to correct
those
errors or insufficiencies, since such action may be essential in order to guarantee
a fair
hearing and equality of arms between the prosecution and the defence.
The rights dealt with in this chapter are manifold and it is difficult, or even
impossible, to single out some as being more important than others. These rights
indeed form a whole, and, together with the rights dealt with in Chapters 4 to 6,
constitute the foundation on which a society respectful of human rights in
general,
including the rule of law, is built.
Lawyers 313
.........Chapter 8
INTERNATIONAL
LEGAL STANDARDS
FOR THE PROTECTION
OF PERSONS DEPRIVED
OF THEIR LIBERTY.................
Learning Objectives
_To familiarize participants with some of the most important international
legal
standards concerning the treatment of persons deprived of their liberty,
including the
legal duty of States to prevent, punish and remedy violations of these
standards;
_ To illustrate how the many legal rules are enforced in practice in order to
protect the
rights of persons deprived of their liberty;
_ To explain what legal steps, measures and/or actions judges, prosecutors
and lawyers
must take in order to safeguard the rights of persons deprived of their
liberty.
Questions
_ Have you ever encountered persons deprived of their liberty who have
complained of
ill-treatment?
_ If so, when was the alleged ill-treatment inflicted and for what purpose?
_ What measures were taken to remedy the situation, and what effect did
they have, if
any?
_ What are the rules in your country with regard to the recognition of
places of detention
and the registration of persons deprived of their liberty?
_ What are the rules in your country with regard to recourse to solitary
confinement? For
example, for what reasons, for how long, and in what conditions can it be
imposed?
_ Is incommunicado detention permitted under the laws of your country,
and if so, for
how long? What legal remedies are at the disposal of the person subjected
to such
detention? How do the authorities ensure that no physical or mental
abuses occur
while the detainee or prisoner is held incommunicado?
Lawyers 315
Questions (cont.d)
_ As lawyers, have you ever encountered problems in having free and
confidential
contacts with your detained clients? If so, what did you do about it?
_ Are there any special problems in your country with regard to the
conditions of
detention for children and women?
_ If so, what are they and what measures, if any, have been taken in order
to remedy the
situation?
_ What are the formal complaint procedures in your country for alleged ill-
treatment of
detainees and prisoners, including women and children?
_ Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, 1984
_ The 1949 Geneva Conventions and the two Protocols Additional of
1977
_ Statute of the International Criminal Court, 1998
_ Universal Declaration of Human Rights, 1948
*****
_ Standard Minimum Rules for the Treatment of Prisoners, 1955
_ Basic Principles for the Treatment of Prisoners, 1990
_ Body of Principles for the Protection of All Persons under Any Form
of Detention or Imprisonment, 1988
_ Principles of Medical Ethics relevant to the Role of Health Personnel,
particularly Physicians, in the Protection of Prisoners and Detainees
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, 1982
_ Code of Conduct for Law Enforcement Officials, 1979
_ Declaration on the Protection of All Persons from Enforced
Disappearance, 1992
_ Principles on the Effective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions, 1989
Chapter 8 • International Legal Standards for the Protection of Persons Deprived of Their Liberty
Relevant Legal Instruments (cont.d)
_ Inter-American Convention to Prevent and Punish Torture, 1985
_ Inter-American Convention on the Forced Disappearance of Persons,
1994
_ European Convention for the Prevention of Torture and Inhuman or
Introduction
This chapter explains the principal international legal rules governing the
treatment of persons deprived of their liberty and will also provide examples of
how
these legal rules have been interpreted by the international monitoring organs.
The treatment of all categories of detainees and prisoners remains a major
challenge in the area of overall improvement in respect for the human person.
Placed in
a situation of inferiority and weakness, a person who is arrested, in pre-trial
detention or
serving a prison sentence upon conviction is to a considerable extent left to the
mercy
of the police and prison officials. The detainee or prisoner is virtually cut off from
outside life, and thus also vulnerable to treatment violating his or her rights. The
continuing widespread use of torture and other inhuman or degrading treatment
or
punishment of these categories of people, whose cries for help in moments of
pain can
be heard by nobody except fellow inmates, constitutes an intolerable insult to
human
dignity.
International human rights law does however contain strict rules about the
treatment of detainees and prisoners which are applicable at all times, and
States are
under a legal duty to take the necessary legislative and practical measures to
put an end
to all practices that violate these rules. In this respect, the task of judges,
prosecutors
and lawyers is of primordial importance in contributing to an increased respect
for the
legal rules that will help safeguard the life, security and dignity of people
deprived of
their liberty. In their daily work, these legal professions, when faced with people
suspected or accused of criminal activities, will have to exercise constant
vigilance for
signs of torture, forced confessions under ill-treatment or duress, and any other
kind of
physical or mental hardship. Judges, prosecutors and lawyers thus have not just
a key
role in this regard, but also a professional duty to ensure the effective
implementation
of the existing domestic and international rules for the protection of the rights of
people deprived of their liberty.
Lawyers 317
This chapter will first deal with the notion of torture, cruel, inhuman and
degrading treatment and punishment, and will in particular deal with the
problems
caused by solitary confinement and, more specifically, incommunicado
detention. It
will also briefly explain the particular problems to which vulnerable groups such
as
children and women are subjected while detained. The rights both of children
and of
women in the administration of justice will, however, also be dealt with in some
detail in
Chapters 10 and 11 respectively. This chapter will then consider aspects of
detention
such as accommodation, exercise, the health of detainees and prisoners and
their
contacts with the outside world through visits and correspondence. Thirdly, the
chapter will deal with the complaints procedures which must be available at all
times to
all persons deprived of their liberty. Lastly, the chapter will provide some advice
on
how judges, prosecutors, and lawyers may work more effectively for the
eradication of
torture and other unlawful treatment of detainees and prisoners.
1.1 Use of terms
In this chapter the terms “detainee” and “detained person” mean any person
deprived of his or her personal liberty except as a result of conviction for an
offence,
while the expressions “prisoner” and “imprisoned person” mean any person
deprived
of his or her personal liberty as a result of conviction for an offence. It should
however
be noted that in the Standard Minimum Rules for the Treatment of Prisoners, the
term
“prisoner” is used in a generic sense covering both untried and convicted
persons, a
fact that must be borne in mind whenever these rules are being quoted or
otherwise
referred to.
2. The Prohibition of Torture and
Cruel, Inhuman or Degrading
Treatment or Punishment
2.1 Introductory remarks
Not only are the right to life and the prohibition of torture and other cruel,
inhuman or degrading treatment or punishment to be found in all major general
human
rights treaties and numerous other human rights instruments, but these norms
also run
like a thread through international humanitarian law. For instance, according to
common article 3(I)(a) to the 1949 Geneva Conventions, which concerns armed
conflicts not of an international character, “violence to life and person, in
particular
murder of all kinds, mutilation, cruel treatment and torture” shall remain
prohibited at
any time and in any place whatsoever with respect to “persons taking no active
part in
the hostilities”. Further, article 75(2)(a) of Protocol Additional I and article 4(2)(a)
of
Protocol Additional II to the Geneva Conventions, which respectively relate to
international and non-international armed conflicts, similarly proscribe “violence
to the
life, health and physical or mental well-being of persons”, and, in particular,
murder,
torture, corporal punishment and mutilation.
The peremptory nature both of the right to life and of the right to freedom
from torture and other cruel, inhuman or degrading treatment or punishment is
moreover underlined by the fact that these rights cannot be derogated from
under
international human rights law even in the gravest of crisis situations. This is
made clear
by article 4(2) of the International Covenant on Civil and Political Rights, article
27(2)
of the American Convention on Human Rights and article 15(2) of the European
Convention on Human Rights. Article 2(2) of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment also provides that
“no
exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a
justification of torture”. Moreover, article 5 of the Inter-American Convention to
Prevent and Punish Torture adds that “neither the dangerous character of the
detainee
or prisoner, nor the lack of security of the prison establishment or penitentiary
shall
justify torture”.
The fundamental nature of the prohibition of torture is further underlined by
the fact that, according to article 7 of the Rome Statute of the International
Criminal
Court, torture constitutes a crime against humanity “when committed as part
of a
widespread or systematic attack directed against any civilian population, with
knowledge of the attack”. “Torture or inhuman treatment, including biological
experiments” also constitute war crimes and grave breaches of the 1949
Geneva
Conventions for the purpose of the same Statute (art. 8(2)(a)(ii)).
In addition to this multitude of international legal rules, recourse to torture is
often prohibited at the domestic level. The existence of torture is thus not a legal
problem per se, but rather one of implementation of the law, that poses a true
challenge
to the world community.
2.2 Legal responsibilities of States
Article 7 of the International Covenant on Civil and Political Rights provides
that “no one shall be subjected to torture or to cruel, inhuman or degrading
treatment
or punishment”, and, in particular, that “no one shall be subjected without his
free
consent to medical or scientific experimentation”. In its General Comment No.
20, the
Human Rights Committee explained that the aim of this article “is to protect
both the
dignity and the physical and mental integrity of the individual”.1 It emphasized,
furthermore, that “it is the duty of the State party to afford everyone protection
through legislative and other measures as may be necessary against the acts
prohibited
by article 7, whether inflicted by people acting in their official capacity, outside
their
official capacity or in a private capacity”.2 The prohibition in article 7 “is
complemented
by the positive requirements of article 10, paragraph 1, of the Covenant, which
Lawyers 319
2Ibid., loc. cit.
stipulates that ‘All persons deprived of their liberty shall be treated with
humanity and
with respect for the inherent dignity of the human person’.”3
*****
Article 2 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment provides that “each State Party shall take
effective legislative, administrative, judicial or other measures to prevent acts
of torture
in any territory under its jurisdiction” (emphasis added). According to article 12
of the
Convention, each State party shall moreover “ensure that its competent
authorities
proceed to a prompt and impartial investigation, wherever there is
reasonable
ground to believe that an act of torture has been committed in any territory
under its
jurisdiction” (emphasis added). In making its recommendations to States parties,
the
Committee against Torture has consistently emphasized that they should
“ensure
vigorous investigation and, where appropriate, the prosecution of all reported
instances
of alleged torture and ill-treatment” by their authorities, “whether civil or
military”.4
For the purpose of ensuring that perpetrators of torture do not enjoy immunity,
the
Committee against Torture has further recommended that States parties “ensure
that
amnesty laws exclude torture from their reach”.5
Furthermore, it is noteworthy that the Committee against Torture has
repeatedly recommended that States parties to the Convention against Torture
should
consider repealing laws which may undermine the independence of the
Judiciary,6 and, with regard more particularly to the problem of limited-term
appointments, bring their legislation into line with the 1985 Basic Principles on
the
Independence of the Judiciary and the 1990 Guidelines on the Role of
Prosecutors.7
*****
In General Comment No. 20, the Human Rights Committee also pointed out
that article 7 of the International Covenant on Civil and Political Rights should be
read
in conjunction with article 2(3) thereof concerning the obligation of the States
parties to
provide effective remedies to persons whose rights and freedoms are
violated.8 This
means, in particular, that “the right to lodge complaints against
maltreatment
prohibited by article 7 must be recognized in the domestic law” and that
“complaints
must be investigated promptly and impartially by competent authorities so as to
make
the remedy effective”.9 The Committee against Torture has also emphasized the
importance of introducing “an effective and reliable complaint system that will
allow
the victims of torture and other forms of cruel, inhuman or degrading treatment
or
punishment to file complaints”.10
3Ibid.
4See e.g. as to Peru, UN doc. GAOR, A/55/50, p. 15, para. 61(a).
5Ibid., p. 17.
6See e.g. as to Peru, in UN doc. GAOR, A/55/44, p. 15, para. 60; and, as to Azerbaijan, see ibid., p. 17, para.
69(d).
7See as to Kyrgyzstan, ibid., p. 19, para. 75(d).
10See e.g. as to Poland, UN doc. GAOR, A/55/44, p. 22, para. 94.
Lastly, with regard to the problem of impunity, the Human Rights
Committee has stated that “amnesties are generally incompatible with the duty
of States
to investigate such acts; to guarantee freedom from such acts within their
jurisdiction;
and to ensure that they do not occur in the future”.11 On the issue of amnesty
laws the
Human Rights Committee and the Committee against Torture thus concur. In this
respect the Human Rights Committee has said that “States may not deprive
individuals
of the right to an effective remedy, including compensation and such full
rehabilitation
as may be possible.”12
*****
The Inter-American Court of Human Rights has explained States’ obligations
inter alia under article 1 of the American Convention on Human Rights in some
detail.
With regard to the obligation to “ensure ... the free and full exercise” of the
rights and
freedoms guaranteed by the Convention, it has thus stated that it
“... implies the duty of the States Parties to organize the governmental
must prevent, investigate and punish any violation of the rights recognized
by the Convention and, moreover, if possible attempt to restore the right
violated and provide compensation as warranted for damages resulting
from the violation.”13
The Court added in this respect that
“The obligation to ensure the free and full exercise of human rights is not
comply with this obligation – it also requires the government to conduct
itself so as to effectively ensure the free and full exercise of human
rights.”14
This means, in particular, allowing the Judiciary, the prosecuting
authorities and lawyers to pursue their work effectively and
independently of the
governmental authorities.
*****
In a case concerning the alleged rape and ill-treatment of a female detainee,
the Aydin case, the European Court of Human Rights recalled that article 13 of
the
European Convention on Human Rights “guarantees the availability at the
national
level of a remedy to enforce the substance of the Convention rights and
freedoms in
whatever form they might happen to be secured in the domestic legal order”.
Lawyers 321
11General Comment No. 20, United Nations Compilation of General Comments, p. 141, para. 15.
12Ibid., loc. cit.
14Ibid., para. 167.
“The effect of this article is thus to require the provision of a domestic
remedy allowing the competent national authority both to deal with the
substance of the relevant Convention complaint and to grant appropriate
relief, although Contracting States are afforded some discretion as to the
manner in which they conform to their obligations under this provision.”15
Although “the scope of the obligation under article 13 varies depending on
the nature of the applicant’s complaint under the Convention”, nevertheless,
“the remedy required ... must be ‘effective’ in practice as well as in law,
in particular in the sense that its exercise must not be unjustifiably hindered
by acts or omissions of the authorities of the respondent State ...”.16
The European Court added in this case that
“the nature of the right safeguarded under Article 3 of the Convention has
implications for Article 13. Given the fundamental importance of the
prohibition of torture and the especially vulnerable position of torture
victims, ... Article 13 imposes, without prejudice to any other remedy
available under the domestic system, an obligation on States to carry out a
thorough and effective investigation of incidents of torture.
Accordingly, where an individual has an arguable claim that he or she has
been tortured by agents of the State, the notion of an ‘effective remedy’
entails, in addition to the payment of compensation where appropriate, a
thorough and effective investigation capable of leading to the
identification and punishment of those responsible and including effective
access for the complainant to the investigatory procedure.”17
Lastly, although, unlike article 12 of the 1984 Convention against Torture,
article 13 of the European Convention does not impose, expressis verbis, “a duty
to
proceed to a ‘prompt and impartial’ investigation whenever there is a reasonable
ground to believe that an act of torture has been committed”, “such a
requirement is
implicit in the notion of an ‘effective remedy’ under article 13”.18 Consequently,
in the
Aydin case there had been a violation of article 13 since “no thorough and
effective
investigation was conducted into the applicant’s allegations and ... this failure
undermined the effectiveness of any other remedies which may have existed
given the
centrality of the public prosecutor’s role to the system of remedies as a whole,
including
the pursuit of compensation”.19
*****
For a more detailed analysis of the legal duty of States to prevent, investigate,
prosecute, punish and remedy human rights violations see Chapter 15 of this
Manual.
15Eur. Court HR, Aydin v. Turkey, judgment (Grand Chamber) of 25 September 1997, Reports 1997-VI, p.
1895, para. 103.
17Ibid., pp. 1895-1896, para. 103.
18Ibid., para. 103 at p. 1896.
19Ibid., p. 1898, para. 109.
2.3 The notions of torture and cruel, inhuman

or degrading treatment or punishment:
definitions and understandings
Article 7 of the International Covenant on Civil and Political Rights contains
no definition of the notions covered thereby, nor did the Human Rights
Committee
“consider it necessary to draw up a list of prohibited acts or to establish sharp
distinctions between the different kinds of punishment or treatment”, since “the
distinctions depend on the nature, purpose and severity of the treatment
applied”.20
However, it has made clear that “the prohibition in article 7 relates not only to
acts that
cause physical pain but also to acts that cause mental suffering to the victim”
and,
moreover, that it covers “excessive chastisement ordered as punishment for a
crime or
as an educative or disciplinary measure”.21
In one case, however, the Human Rights Committee observed that the
assessment of what constitutes inhuman and degrading treatment “depends
on all
the circumstances of the case, such as the duration and manner of the
treatment, its
physical or mental effects as well as the sex, age and state of health of the
victim”.22
*****
For the purposes of the Convention against Torture, the term “torture”
means
“any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him
or a third person information or a confession, punishing him for an act he
or a third person has committed or is suspected of having committed, or
intimidating or coercing him or a third person, or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at
the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity. It does not include pain or
suffering arising only from, inherent in or incidental to lawful sanctions”
(art. 1(1)).
Under article 16 of the Convention against Torture, “each State Party shall
undertake to prevent ... other acts of cruel, inhuman or degrading treatment or
punishment which do not amount to torture as defined in article 1, when such
acts are
committed by or at the instigation of or with the consent or acquiescence of a
public
official or other person acting in an official capacity.”
*****
Lawyers 323
20See General Comment No. 20, United Nations Compilation of General Comments, p. 139, para. 4.
21Ibid., para. 5.
A/44/40, p. 256,
para. 9.2.
In the Loayza Tamayo case, the Inter-American Court of Human Rights
explained that
“the violation of the right to physical and psychological integrity of
persons is a category of violation that has several gradations and embraces
treatment ranging from torture to other types of humiliation or cruel,
inhuman or degrading treatment with varying degrees of physical and
psychological effects caused by endogenous and exogenous factors which
must be proven in each specific situation.”23
Referring to the judgments of the European Court of Human Rights in the
Irish and Ribitsch cases, the Inter-American Court added that
“even in the absence of physical injuries, psychological and moral
suffering, accompanied by psychic disturbance during questioning, may be
deemed inhuman treatment. The degrading aspect is characterized by the
fear, anxiety and inferiority induced for the purpose of humiliating and
degrading the victim and breaking his physical and moral resistance. ...
That situation is exacerbated by the vulnerability of a person who is
unlawfully detained. ... Any use of force that is not strictly necessary to
ensure proper behavior on the part of the detainee constitutes an assault on
the dignity of the person ... , in violation of Article 5 of the American
Convention. The exigencies of the investigation and the undeniable
difficulties in the anti-terrorist struggle must not be allowed to restrict the
protection of a person’s right to physical integrity.”24
*****
With regard to the prohibition of “torture or ... inhuman or degrading
treatment or punishment” in article 3 of the European Convention on Human
Rights,
the European Court of Human Rights has stated that the distinction between
“torture” and “inhuman or degrading treatment” “derives principally from a
difference in the intensity of the suffering inflicted”.25 In the view of the Court, “it
appears ... that it was the intention that the Convention, with its distinction
between
‘torture’ and ‘inhuman or degrading treatment’, should by the first of these
terms
attach a special stigma to deliberate inhuman treatment causing very serious
and cruel
suffering”.26
The Court has consistently emphasized the absolute prohibition under article
3, which shows that it “enshrines one of the fundamental values of the
democratic
societies making up the Council of Europe”.27 In view of “the object and purpose
of
23I-A Court HR, Case of Loayza Tamayo v. Peru, Judgment of September 17, 1997, in OAS doc.
24Ibid., loc. cit.
25Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p.
66, para. 167.
26Ibid., loc. cit. For a more recent case see Eur. Court HR, Aydin v. Turkey, judgment (Grand Chamber) of 25
September 1997, Reports
1997-VI, p. 1891, para. 82.
27Eur. Court HR, Soering v. the United Kingdom, judgment of 7 July 1989, Series A, No. 161, p. 34, para. 88.
the Convention, as an instrument for the protection of individual human beings”,
article 3 must, like any other provision thereof, “be interpreted and applied so as
to
make its safeguards practical and effective”.28
*****
Some examples will be given below of behaviour that has been considered to
violate the international prohibitions on torture and/or cruel, inhuman and
degrading
treatment or punishment of people deprived of their liberty, or, exceptionally, in
the
execution of a punishment.
2.3.1 Rape as torture
In the case of Aydin, to which reference was made above, the applicant, a
Turkish citizen of Kurdish origin, was only 17 years old when, together with her
father
and sister-in-law, she was detained by security forces. She was raped and ill-
treated
during her detention. Accepting the findings of the European Commission of
Human
Rights as to the facts of the case, the Court held that
“Rape of a detainee by an official of the State must be considered to be an
especially grave and abhorrent form of ill-treatment given the ease with
which the offender can exploit the vulnerability and weakened resistence
of his victim. Furthermore, rape leaves deep psychological scars on the
victim which do not respond to the passage of time as quickly as other
forms of physical and mental violence. The applicant also experienced the
acute pain of forced penetration, which must have left her feeling debased
and violated both physically and emotionally.”29
The applicant had, moreover, been “subjected to a series of particularly
terrifying and humiliating experiences while in custody at the hands of the
security
forces at Derik gendarmerie headquarters having regard to her sex and youth
and the
circumstances under which she was held”; she had been
“... detained over a period of three days during which she must have been
bewildered and disoriented by being kept blindfolded, and in a constant
state of physical pain and mental anguish brought about by the beatings
administered to her during questioning and by the apprehension of what
would happen to her next. She was also paraded naked in humiliating
circumstances thus adding to her overall sense of vulnerability and on one
occasion she was pummelled with high-pressure water while being spun
around in a tyre.”30
Lawyers 325
28Ibid., para. 87; emphasis added.
29Eur. Court HR, Aydin v. Turkey, judgment (Grand Chamber) of 25 September 1997, Reports 1997-VI, p.
1891, para. 83.
30Ibid., para. 84.
The Court was thus
“... satisfied that the accumulation of acts of physical and mental violence
inflicted on the applicant and the especially cruel act of rape to which she
was subjected amounted to torture in breach of Article 3 of the
Convention”.31
*****
In a case against Peru, the Inter-American Commission on Human Rights was
also confronted with a case of rape by military personnel. Although the woman
was not
detained as such, she was helpless in the hands of these individuals who had
abducted –
and eventually killed – her husband. On the night of her husband’s abduction
from
their home, Ms. Mejía was raped twice by a military officer.32 The Commission
presumed the alleged facts to be true; in its view “the credibility of the version
presented by the petitioner” was corroborated by various reports of
intergovernmental
and non-governmental bodies that had documented “numerous rapes of women
in
Peru by members of the security forces in emergency areas and in which the
specific
case of Raquel Mejía” had been mentioned and described.33 Having thus
presumed the
responsibility of troops of the Peruvian Army in the commission of the abuses
against
Ms. Mejía and also the non-existence in Peru of effective domestic remedies, the
Commission held that
“Current international law establishes that sexual abuse committed by
members of security forces, whether as a result of a deliberate practice
promoted by the State or as a result of failure by the State to prevent the
occurrence of this crime, constitutes a violation of the victims’ human
rights, especially the right to physical and mental integrity.”34
In support of this view it referred inter alia to articles 27 and 147 of the Fourth
Geneva Convention of 1949, common article 3 of the Geneva Conventions,
article 76
of Protocol Additional I to the Geneva Conventions, article 4(2) of Protocol
Additional
II to the Geneva Conventions and article 5 of the 1998 Statute of the
International
Criminal Court.35
The Commission then interpreted the notion of torture in article 5 of the
American Convention on Human Rights in the light of the definition thereof
contained
in the Inter-American Convention to Prevent and Punish Torture; on the basis of
this
definition, for torture to exist, the following three elements had to be combined:
_ “it must be an intentional act through which physical and mental pain and
suffering
is inflicted on a person”;
_ “it must be committed with a purpose”; and
_ “it must be committed by a public official or by a private person acting at the
instigation of the former”.36
31Ibid., p. 1892, para. 86.
32I-A Comm. HR, Report No. 5/96, Case 10.970 v. Peru, March 1, 1996, in OAS doc. OEA/Ser.L/V/II.91, doc. 7
rev., Annual Report
of the Inter-American Commission on Human Rights 1995, pp. 158-159.
33Ibid., pp. 174-175.
34Ibid., p. 182.
35Ibid., pp. 182-184.
36Ibid., p. 185.
These elements were all fulfilled in the case of Ms. Mejía. As to the first
element, the Commission considered “that rape is a physical and mental abuse
that is
perpetrated as a result of an act of violence”; it also “causes physical and mental
suffering in the victim. In addition to the violence suffered at the time it is
committed,
the victims are commonly hurt or, in some cases, are even made pregnant. The
fact of
being made the subject of abuse of this nature also causes a psychological
trauma that
results, on the one hand, from having been humiliated and victimized, and on
the other,
from suffering the condemnation of the members of their community if they
report
what has been done to them.”37 This element was fulfilled in this case, since Ms.
Mejía
“was a victim of rape, ... in consequence of an act of violence that [caused] her
‘physical
and mental pain and suffering’.”38 As to the second element, the rape of Ms.
Mejía was
committed “with the aim of punishing her personally and intimidating her”; the
guilty
man had told her that “she, too, was wanted as a subversive, like her husband”,
and
“that her name was on a list of persons connected with terrorism”. The man also
threatened to come back and rape her again.39 Lastly, with regard to the third
element,
the Commission concluded that the man who raped Ms. Mejía was a member of
the
security forces who had himself been accompanied by a large group of soldiers.40
Considering that the three elements of the definition of torture were all
present in this case, the Commission concluded that Peru had violated article 5
of the
American Convention on Human Rights.41 It concluded moreover that the rapes
suffered by Ms.Mejía constituted a violation of article 11 of the Convention
concerning
the right to privacy “in that they affected both her physical and her moral
integrity,
including her personal dignity”; indeed, as stated by the Commission, besides
being a
violation of victims’ physical and mental integrity, sexual abuse “implies a
deliberate
outrage to their dignity”.42 Lastly, the Peruvian State had also violated articles
1(1), 8(1)
and 25 of the Convention since it had not provided effective remedies with
regard to
these violations.43
2.3.2 Treatment of detainees and prisoners
The prevalence of torture and other unlawful treatment of persons deprived
of their liberty is all too evident from the case-law of, inter alia, the Human
Rights
Committee, which contains numerous examples of violations of articles 7 and
10(1) of
the International Covenant following the use of violence for the purpose, among
others, of extracting confessions. Whenever the author is able to give a
sufficiently
detailed account of the beatings and other kinds of ill-treatment and the State
party
concerned fails to respond thereto, or does not dispute the allegations, the
Committee
considers that the information before it sustains a violation of articles 7 and
10(1) of the
Lawyers 327
37Ibid., p. 186.
38Ibid., loc. cit.
39Ibid., pp. 186-187.
40Ibid., p. 187.
41Ibid., loc. cit.
42Ibid., pp. 187-188.
43Ibid., p. 193. The same held true with regard to the homicide of her husband, ibid., loc. cit.
Covenant either taken together or separately, depending on the viciousness of
the
treatment.44
*****
With regard to means of constraint of detained persons, the Committee
against Torture has recommended that the United States of America abolish
“electro-shock stun belts and restraint chairs as methods of restraining those in
custody”, since their use almost invariably leads to breaches of article 16 of the
Convention against Torture, which outlaws cruel, inhuman or degrading
treatment or
punishment.45
*****
In a case against Zaire, the African Commission on Human and Peoples’
Rights concluded that “beating of detainees with fists, sticks and boots, the
keeping of
prisoners in chains and subjecting them to electric shock, physical suspension
and
submersion in water ... offend the human dignity”; such acts, together and
separately,
constitute a violation of article 5 of the African Charter.46 Similarly, in a case
against
Malawi, the Commission concluded that the acts to which Vera and Orton Chirwa
were
subjected in prison “jointly and separately” clearly constituted a violation of
article 5;
their ill-treatment and punishment for disciplinary reasons included reduction in
diet,
chaining for two days of the arms and legs with no access to sanitary facilities,
detention
in a dark cell without access to natural light, water or food, forced nudity, and
beating
with sticks and iron bars; these were “examples of torture, cruel and degrading
punishment and treatment”.47
*****
The Inter-American Court of Human Rights has also had on numerous
occasions to deal with cases involving torture and other kinds of ill-treatment, as
in the
so-called “Street Children” case, where the Court found that, after their having
been
abducted by Guatemalan State security forces and prior to their murder, “the
physical
and mental integrity” of the four adolescents had been violated and that “they
were
44See e.g. among many other cases, Communication No. 328/1988, R. Zelaya Blanco v. Nicaragua (Views
in UN doc. GAOR, A/49/40 (vol. II), pp. 15-16, paras. 6.5-6.6 and p. 18, para. 10.5: attempts to extract
confession by threats,
beatings, assassination of fellow detainees etc. contrary to articles 7 and 10(1) of the Covenant;
Communication No. 613/1995, A.
Leehong v. Jamaica (Views adopted on 13 July 1999), in UN doc. GAOR, A/54/40 (vol. II), p. 60, para. 9.2: ill-
treatment and conditions
were “such as to violate the author’s right to be treated with humanity and with respect for the inherent
dignity of the human person
and the right not to be subjected to cruel, inhuman or degrading treatment” under articles 7 and 10(1)
(emphasis added); the
author, who was on death row, had been beaten by prison warders and only allowed to see a doctor once
although having made other
requests to this effect; Communication No. 481/1991, J. Villacnés Ortega v. Ecuador (Views adopted on 8
A/52/40 (vol. II), p. 4, para. 9.2 as compared with p. 2 para. 2.4: ill-treatment by prison personnel after an
escape attempt by author’s
cell-mates; the author had, inter alia, “multiple round black traces on his abdomen and thorax resulting
from the application of electric
discharges”; the treatment amounted to “cruel and inhuman treatment” contrary to articles 7 and 10(1)
of the Covenant (emphasis
added); Communication No. 612/1995, Arhuacos v. Colombia (Views adopted on 29 July 1997), in UN doc.
p. 181, para. 8.5: torture of two brothers in violation of article 7, the victims being, inter alia, “blindfolded
and dunked in a canal”.
45UN doc. GAOR, A/55/44, p. 32, para. 180(c).
46ACHPR, World Organisation against Torture and Others v. Zaire, Communications Nos. 25/89, 47/90,
56/91 and 100/93, decision adopted
during the 19th session, March 1996, para. 65 of the text of the decision as published at
47ACHPR, Krishna Achuthan and Amnesty International (on behalf of Aleke Banda and Orton and Vera
Chirwa) v. Malawi, Communications
Nos. 64/92, 68/92 and 78/92, decision adopted during the 16th session, October-November 1994, para. 33 of
the text of the decision as
published at http://www.up.ac.za/chr/.
victims of ill-treatment and torture” contrary to article 5(1) and (2) of the
American
Convention on Human Rights.48
In the case of Castillo-Páez, involving the abduction and disappearance of the
victim, the Inter-American Court of Human Rights concluded that it was contrary
to
the right to humane treatment guaranteed by article 5 to place Mr. Castillo-Páez
in the
trunk of an official vehicle, and that “even if no other physical or other
maltreatment
occurred, that action alone must be clearly considered to contravene the respect
due to
the inherent dignity of the human person.”49
*****
In the Irish case, the European Court of Human Rights concluded that the
combined use of the five interrogation techniques of people arrested in Northern
Ireland in 1971 constituted inhuman treatment within the meaning of article 3
of the
European Convention on Human Rights. The Court found that these techniques,
which consisted of wall standing, hooding, subjection to noise, deprivation of
sleep,
and deprivation of food and drink, “were applied in combination, with
premeditation
and for hours at a stretch” and that they “caused, if not actual bodily injury, at
least
intense physical and mental suffering to the persons subjected thereto and also
led to
acute psychiatric disturbances during interrogation”.50 In the view of the Court,
these
interrogation techniques were also “degrading since they were such as to
arouse in
their victims feelings of fear, anguish and inferiority capable of humiliating and
debasing them and possibly breaking their physical or moral resistance”.51
In the case of Tomasi versus France, the applicant was subjected to police
interrogation for about 40 hours, during which he had been “slapped, kicked,
punched
and given forearm blows, made to stand for long periods and without support,
hands
handcuffed behind the back; he had been spat upon, made to stand naked in
front of an
open window, deprived of food, threatened with a firearm and so on”.52 This
constituted “inhuman and degrading treatment” to the European Court of
Human
Rights, the Court significantly adding that “the requirements of the investigation
and
the undeniable difficulties inherent in the fight against crime, particularly with
regard to
terrorism, cannot result in limits being placed on the protection to be afforded in
respect of the physical integrity of individuals”.53
In the later case of Aksoy, the Court did however conclude that the applicant
had been subjected to torture. In this case, the Court stated that “where an
individual is
taken into police custody in good health but is found to be injured at the time of
release,
it is incumbent on the State to provide a plausible explanation as to the causing
of the
injury, failing which a clear issue arises under Article 3 of the Convention.”54
Relying on
Lawyers 329
48I-A Court HR, Villagrán Morales et al. case v. Guatemala, judgment of November 19, 1999, Series C, No.
63, p. 180, para. 177 read in
conjunction with p. 176, para. 186; emphasis added.
49I-A Court HR, Castillo-Páez case, judgment of November 3, 1997, in OAS doc. OAS/Ser.L/V/III.39, doc. 5,
Annual Report
66, para. 167.
108.
53Ibid., p. 42, para. 115.
54Eur. Court HR, Case of Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2278, para.
61.
the findings of the European Commission of Human Rights, the Court accepted
that
Mr. Aksoy had, inter alia, been subjected to “Palestinian hanging”, meaning that
he had
been “stripped naked, with his arms tied together behind his back, and
suspended by
his arms”. In the view of the Court:
“this treatment could only have been deliberately inflicted; indeed, a
certain amount of preparation and exertion would have been required to
carry it out. It would appear to have been administered with the aim of
obtaining admissions or information from the applicant. In addition to the
severe pain which it must have caused at the time, the medical evidence
shows that it led to a paralysis of both arms which lasted for some time... .
The Court considers that this treatment was of such a serious and cruel
nature that it can only be described as torture.”55
2.3.3 Corporal punishment
As noted above, the Human Rights Committee considers that “corporal
punishment, including excessive chastisement ordered as punishment for a
crime or as
an educative or disciplinary measure”, is covered by the prohibition in article 7 of
the
International Covenant on Civil and Political Rights.56 This view was confirmed in
the
Osbourne case, where the author had been given a 15-year prison sentence and
ordered
to receive 10 strokes of the tamarind switch for illegal possession of a firearm,
robbery
with aggravation and wounding with intent. It was held in this case that
“irrespective of
the nature of the crime that is to be punished, however brutal it may be, it is the
firm
opinion of the Committee that corporal punishment constitutes cruel, inhuman
and
degrading treatment or punishment” contrary to article 7 of the Covenant,
which
was thus violated.57 The Committee informed the Government that it was “under
an
obligation to refrain from carrying out the sentence of whipping upon Mr.
Osbourne”,
and, further, that it “should ensure that similar violations do not occur in the
future by
repealing the legislative provisions that allow for corporal punishment”.58
*****
With regard to Namibia, the Committee against Torture recommended “the
prompt abolition of corporal punishment” insofar as it was still legally possible
under
Namibian law to impose such punishment.59 This Committee has also expressed
concern with regard to the situation in Saudi Arabia, since “sentencing to, and
imposition of, corporal punishments by judicial and administrative authorities,
including, in particular, flogging and amputation of limbs, ... are not in conformity
with” the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment.60
****
55Ibid., p. 2279, para. 64.
56See General Comment No. 20, United Nations Compilation of General Comments, p. 139, para. 5.
57Communication No. 759/1997, G. Osbourne v. Jamaica (Views adopted on 15 March 2000), in UN doc.
GAOR, A/55/40
58Ibid., para. 11.
60See UN doc. CAT/C/XXVIII/CONCL.6 Conclusions and Recommendations: Saudia Arabia, adopted on 15
May 2002, para. 4(b).
In a case where a juvenile court in the Isle of Man had ordered that an
adolescent be given three strokes with a cane – a punishment that was in fact
executed –
the European Court of Human Rights concluded that it neither amounted to
“torture”,
nor to “inhuman treatment” but that it did constitute “degrading treatment”
for the
purposes of article 3 of the European Convention on Human Rights.61 The Court
examined in detail whether the punishment could be regarded as “degrading”,
and
considered that the “humiliation or debasement involved must attain a particular
level
and must in any event be other than that usual element of humiliation” that
follows
from judicial punishment in general; the assessment was “relative”, depending
“on all
the circumstances of the case and, in particular, on the nature and context of the
punishment itself and the manner and method of execution”.62 The Court’s
description
of the nature of corporal punishment was explained in the following words:
“The very nature of judicial corporal punishment is that it involves one
human being inflicting physical violence on another human being.
Furthermore, it is institutionalised violence, that is in the present case
violence permitted by the law, ordered by the judicial authorities of the
State and carried out by the police authorities of the State... . Thus,
although the applicant did not suffer any severe or long-lasting physical
effects, his punishment – whereby he was treated as an object in the power
of the authorities – constituted an assault on precisely that which it is one
of the main purposes of Article 3 to protect, namely a person’s dignity and
physical integrity. Neither can it be excluded that the punishment may have
had adverse psychological effects.”63
In the view of the Court, the institutionalized character of the violence was
“further compounded by the whole aura of official procedure attending the
punishment and by the fact that those inflicting it were total strangers to the
offender”.
Viewing the circumstances “as a whole”, the Court thus concluded that “the
element of
humiliation attained the level inherent in the notion of ‘degrading treatment’”.64
2.3.4 Medical or scientific experimentation
According to the second sentence of article 7 of the International Covenant
on Civil and Political Rights, “no one shall be subjected without his free consent
to
medical or scientific experimentation.” Failing such consent, the experimentation
will
be considered to constitute a form of “torture” or “cruel, inhuman or degrading
treatment”. In its General Comment No. 20, the Human Rights Committee
observed
that “special protection in regard to such experiments is necessary in the case of
persons not capable of giving valid consent, and in particular those under any
form of
detention or imprisonment. Such persons should not be subjected to any medical
or
scientific experimentation that may be detrimental to their health”.65 This is of
course
particularly relevant with regard to people held in psychiatric hospitals.
Lawyers 331
61Eur. Court HR, Tyrer case, judgment of 25 April 1978, Series A, No. 26, p. 14, para. 29 and p. 17, para. 35;
emphasis added.
62Ibid., p. 15, para. 30
63Ibid., p. 16, para. 33.
64Ibid., pp. 16-17, paras. 33 and 35.
On this issue, Principle 22 of the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment goes a step further by
stipulating that “no detained or imprisoned person shall, even with his
consent, be
subjected to any medical or scientific experimentation which may be detrimental
to his
health” (emphasis added).
The question may rightly be asked whether such vulnerable persons should
ever be subjected to any medical or scientific experimentation, given the
often
difficult task of predicting the possible adverse effect that such experimentation
may
have.
2.4 Torture and law enforcement officials,
health personnel and prosecutors
It follows from what has been said above that every person concerned with
the arrest, interrogation or detention and imprisonment of a suspect or convict
has the
legal duty to treat the person with whom he or she has to deal with respect for
human
dignity and to refrain from resorting to torture or ill-treatment. With regard to
those
who exercise police powers, such as arrest and detention, this has also
been made
explicit in the 1979 Code of Conduct for Law Enforcement Officials, which
provides in
its article 5 that:
“No law enforcement official may inflict, instigate or tolerate any act of
torture or other cruel, inhuman or degrading treatment or punishment, nor
may any law enforcement official invoke superior orders or exceptional
circumstances such as a state of war or a threat of war, a threat to national
security, internal political instability or any other public emergency as a
justification of torture or other cruel, inhuman or degrading treatment or
punishment.”
As far as medical personnel are concerned, Principle 2 of the Principles of
Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in
the
Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman
or
Degrading Treatment or Punishment stipulates that:
“It is a gross contravention of medical ethics, as well as an offence under
applicable international instruments, for health personnel, particularly
physicians, to engage, actively or passively, in acts which constitute
participation in, complicity in, incitement to or attempts to commit torture
or other cruel, inhuman or degrading treatment or punishment.”
Rather, it is the duty of these professional groups to protect the physical and
mental health of detainees and prisoners and to provide them with treatment “of
the
same quality and standard as is afforded to those who are not imprisoned or
detained”
(Principle 1).
As pointed out by the Human Rights Committee, it is important that the
States parties to the Covenant disseminate information to the population
regarding the
ban on torture, and, as further emphasized by the Committee, “enforcement
personnel,
medical personnel, police officers and any other persons involved in the custody
or
treatment of any individual subjected to any form of arrest, detention or
imprisonment
must receive appropriate instruction and training.”66
As indicated above, and as explained in Chapters 4 and 7, confessions may not
be obtained by illegal means such as torture or other forms of ill-treatment or
human
rights violations. Guideline 16 of the Guidelines on the Role of Prosecutors
provides
that prosecutors “shall refuse to use such evidence against anyone other than
those
who used such methods, or inform the Court accordingly, and shall take all
necessary
steps to ensure that those responsible for using such methods are brought to
justice”
(for a similar rule, see also art. 15 of the Convention against Torture).
States have a legal duty under international law to take effective
legislative, administrative, judicial and other measures to prevent acts
of torture and other forms of ill-treatment.
States also have a legal duty to investigate promptly and
effectively alleged instances of torture and other forms of ill-treatment
and to provide effective remedies to alleged victims of such
treatment.
To grant immunity to perpetrators of torture or other forms of
ill-treatment is incompatible with States’ legal duty to prevent,
investigate and remedy human rights violations.
Every person has the right not to be subjected to torture or to cruel,
inhuman or degrading treatment or punishment, and this right must be
guaranteed at all times, and cannot be derogated from even in public
emergencies threatening the life of the nation.
In general, it can be said that torture is a particularly severe form of
ill-treatment aimed either at obtaining confessions or information from a
person or punishing or intimidating him or her. It is committed by a
public official, or at the instigation of or with the consent or acquiescence
of such official or other person acting in an official capacity.
Sexual abuse in the form of rape, committed by public officials, has
been considered to constitute a form of torture.
The right to freedom from ill-treatment comprises the prohibition on
corporal punishment and, as a minimum, medical and scientific
experimentation that has not been freely consented to.
All persons deprived of their liberty must also be treated with respect for
the inherent dignity of the human person.
Law enforcement officials and medical personnel are strictly forbidden to
resort to torture and other forms of ill-treatment at any time. Confessions
obtained by such treatment must be disregarded by prosecutors and
judges.
Lawyers 333
In order to be able to contribute to ensuring the full exercise of the right to
freedom from torture and other forms of ill-treatment, judges, prosecutors
and lawyers must be allowed to pursue their work efficiently and
independently.
3. Legal Requirements as to Places
of Detention and Registration of
Detainees and Prisoners
3.1 Official recognition of all places of detention
In order to protect the personal security of persons deprived of their liberty,
they must be held exclusively in officially recognized places of detention. The
obligation of States to comply with this legal duty is recognized both by the
international monitoring organs and in various legal instruments. For instance, in
General Comment No. 20 on article 7 of the International Covenant on Civil and
Political Rights, the Human Rights Committee stated that:
“To guarantee the effective protection of detained persons, provisions
should be made for detainees to be held in places officially recognized as
places of detention and for their names and places of detention, as well as
for the names of persons responsible for their detention, to be kept in
registers readily available and accessible to those concerned, including
relatives and friends.”67
Article 10 of the Declaration on the Protection of All Persons from Enforced
Disappearance and Principle 6 of the Principles on the Effective Prevention and
Investigation of Extra-legal, Arbitrary and Summary Executions contain similar
requirements with regard to the holding of detained persons in officially
recognized
places of detention. Principle 12(1)(d) of the Body of Principles for the Protection
of
All Persons under any Form of Detention or Imprisonment provides that there
shall be
duly recorded “precise information concerning the place of custody”.
*****
At the regional level, article XI of the Inter-American Convention on the
Forced Disappearance of Persons stipulates, inter alia, that “every person
deprived of
liberty shall be held in an officially recognized place of detention...”. The
Inter-American Court of Human Rights has had to deal with numerous cases
involving
disappeared persons, disappearances that have been made possible because of
the
failure by the respondent State to comply with the basic guarantees against
arbitrary
detention, including the duty only to hold persons deprived of their liberty in
officially
recognized places of detention. As stressed by the Inter-American Court of
Human
Rights, the “forced disappearance of human beings is a multiple and continuous
violation of many rights under the [Inter-American] Convention [on Human
Rights]
that the States Parties are obligated to respect and guarantee”, such as those
contained
in articles 7, 5 and 4 in conjunction with article 1(1).68
*****
The European Court of Human Rights has underlined that “the
unacknowledged detention of an individual is a complete negation” of the
guarantees
against arbitrary detention contained in article 5 of the European Convention on
Human Rights and that it “discloses a most grave violation of Article 5”; given
the
responsibility of the authorities to account for individuals under their control,
“Article 5 requires them to take effective measures to safeguard against the risk
of
disappearance and to conduct a prompt and effective investigation into an
arguable
claim that a person has been taken into custody and has not been seen since”.69
3.2 Registration of detainees and prisoners
In addition to the requirement that persons deprived of their liberty must be
held in officially recognized places of detention, the Human Rights Committee
has held
that provision must also be made for “their names and places of detention, as
well as for
the names of persons responsible for their detention, to be kept in registers
readily
available and accessible to those concerned, including relatives and friends”.70
This duty is also spelled out in Rule 7(1) of the Standard Minimum Rules for
the Treatment of Prisoners, according to which:
“(1) In every place where persons are imprisoned there shall be kept a
bound registration book with numbered pages in which shall be entered in
respect of each prisoner received:
(a) Information concerning his identity;
(b) The reasons for his commitment and the authority therefor;
(c) The day and hour of his admission and release.”
Principle 12(1) of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment provides that “there shall be duly
recorded:
(a) The reasons for the arrest;
(b) The time of the arrest and the taking of the arrested person to a
place of custody as well as that of his first appearance before a
judicial or other authority;
Lawyers 335
68See e.g. I-A Court HR, Velásquez Rodríguez case, judgment of July 29, 1998, Series C, No. 4, p. 147, para.
155 and pp. 162-163,
para. 194.
69Eur. Court HR, Case of Çakici v. Turkey, judgment of 8 July 1999, Reports 1999-IV, p. 615, para. 104;
emphasis added.
70General Comment No. 20, in United Nations Compilation of General Comments, p. 140, para.11.
(c) The identity of the law enforcement officials concerned;
(d) Precise information concerning the place of custody.”
Moreover, according to Principle 12(2) of the Body of Principles, “such
records shall be communicated to the detained person, or his counsel, if any, in
the
form prescribed by law.”
Article 10 of the Declaration on the Protection of All Persons from Enforced
Disappearance goes even further in this respect by stipulating with regard to any
person
deprived of liberty that:
“2. Accurate information on the detention of such persons and their
place or places of detention, including transfers, shall be made promptly
available to their family members, their counsel or to any other persons
having a legitimate interest in the information unless a wish to the contrary
has been manifested by the persons concerned.
3. An official up-to-date register of all persons deprived of their liberty
shall be maintained in every place of detention. Additionally, each State
shall take steps to maintain similar centralized registers. The information
contained in these registers shall be made available to the persons
mentioned in the preceding paragraph, to any judicial or other competent
and independent national authority and to any other competent authority
entitled under the law of the State concerned or any international legal
instrument to which a State concerned is a party, seeking to trace the
whereabouts of a detained person.”
*****
The Inter-American Convention on the Forced Disappearance of Persons
was elaborated in response to the tens of thousands of persons who disappeared
in the
Americas in the 1970s and 1980s. Article XI thereof provides that:
“The States Parties shall establish and maintain official up-to-date
registries of their detainees and, in accordance with their domestic law,
shall make them available to relatives, judges, attorneys, any other person
having a legitimate interest, and other authorities.”
*****
With regard to the European Convention on Human Rights, the European
Court has specified that:
“The recording of accurate holding data concerning the date, time and
location of detainees, as well as the grounds for the detention and the name
of the persons effecting it, is necessary for the detention of an individual to
be compatible with the requirements of lawfulness for the purposes of
Article 5 § 1”.71
71Eur. Court HR, Case of Çakici v. Turkey, judgment of 8 July 1999, Reports 1999-IV, para. 105 at p. 616.
In the case of Çakici, the lack of records of the applicant – who was held in
unacknowledged detention – disclosed “a serious failing”, which was aggravated
by the
“findings as to the general unreliability and inaccuracy” of the custody records in
question. The Court found “unacceptable the failure to keep records which
enable the
location of a detainee to be established at a particular time”.72 Consequently,
there was a
particularly grave violation of article 5 of the European Convention in this case.
All persons deprived of their liberty must be held exclusively in officially
recognized places of detention. Registers must be kept at every place of
detention with detailed and reliable information, inter alia as to the name
of the detained persons, the reasons for their detention, the time of
arrival,
departure and transfer, and the names of the persons responsible for their
detention and imprisonment. Such registers must at all times be readily
available to all persons concerned, such as legal counsel and family
members, to whom the relevant records should also be communicated ex
officio.
4. Conditions of Detention
and Imprisonment
4.1 Basic principles governing detention
and imprisonment
The following essential principles regarding the treatment of persons
deprived of their liberty condition, among others, all the issues dealt with in this
section.
In the first place, and as already indicated above, all persons deprived of their
liberty “shall be treated with humanity and with respect for the inherent
dignity
of the human person” (art. 10(1) of the International Covenant, and see also
art. 5(2)
of the American Convention which, however, makes no reference to “humanity”;
see
further Principle 1 of the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and Principle 1 of the Basic Principles for
the
Treatment of Prisoners; emphasis added).
With regard to article 10(1) of the International Covenant, the Human Rights
Committee has stated that, in addition to the prohibition of ill-treatment and
experimentation in article 7, persons deprived of their liberty may not “be
subjected to
any hardship or constraint other than that resulting from the deprivation of
liberty”,
and that “respect for the dignity of such persons must be guaranteed under the
same
conditions as for that of free persons”. This means that “persons deprived of
their
Lawyers 337
72Ibid., loc. cit.
liberty enjoy all the rights set forth in the Covenant, subject to the restrictions
that are
unavoidable in a closed environment.”73
Furthermore, the Human Rights Committee has emphasized that “treating all
persons deprived of their liberty with humanity and with respect for their dignity
is a
fundamental and universally applicable rule”, which, “as a minimum, cannot
be
dependent on the material resources available in the State party”, and
which must
be applied without discrimination.74 In considering whether the States parties
have
fulfilled their treaty obligations in this respect, the Committee will have regard to
the
relevant United Nations standards applicable to the treatment of prisoners to
which
reference is made throughout this chapter.
Second, the prohibition on discrimination as found in articles 2(1) and 26
of the International Covenant on Civil and Political Rights, article 2 of the African
Charter on Human and Peoples’ Rights, articles 1(1) and 24 of the American
Convention on Human Rights and article 14 of the European Convention on
Human
Rights is, of course, fully applicable to all detained or imprisoned persons. The
principle of non-discrimination is also found in article 6(1) of the Standard
Minimum
Rules for the Treatment of Prisoners, Principle 2 of the Basic Principles for the
Treatment of Prisoners, and Principle 5(1) of the Body of Principles for the
Protection
of All Persons under Any Form of Detention or Imprisonment. The prohibition
on
discrimination does not, however, exclude reasonable distinctions
made between
different detainees and/or prisoners which are objectively justified by
their
specific needs and status.
Third, accused persons “shall, save in exceptional circumstances, be
segregated from convicted persons and shall be subject to separate treatment
appropriate to their status as unconvicted persons” (cf. inter alia art. 10(2)(a) of
the
International Covenant and art. 5(4) of the American Convention). As noted by
the
Human Rights Committee, “such segregation is required in order to emphasize
their
status as unconvicted persons who at the same time enjoy the right to be
presumed
innocent”.75 Consequently, they also have a right to more favourable treatment
than
convicted prisoners, such differential treatment not being a form of
discrimination but
a justified distinction made between the two groups of persons. This issue will be
further dealt with below, in subsection 4.2.1.
Fourth, as to those persons who are convicted, the penitentiary system shall
have as its essential aim the reformation and social rehabilitation/re-
adaptation of
the prisoner concerned (art. 10(3) of the International Covenant and art. 5(6)
of the
American Convention). According to the Human Rights Committee “no
penitentiary
system should be only retributory”, but “should essentially seek the reformation
and
social rehabilitation of the prisoner”.76 In submitting their periodic reports, the
States
parties must therefore provide “specific information concerning the measures
taken to
provide teaching, education and re-education, vocational guidance and training
and
73See General Comment No. 21, in United Nations Compilation of General Comments, para. 3 at p. 142.
76Ibid., p. 143, para. 10.
also concerning work programmes for prisoners inside the penitentiary
establishment
as well as outside”.77
In this respect, Rule 59 as read in conjunction with Rule 58 of the Standard
Minimum Rules for the Treatment of Prisoners provides that in order to enable
the
prisoners “to lead a law-abiding and self-supporting life” upon discharge,
“the institution should utilize all the remedial, educational, moral, spiritual
and other forces and forms of assistance which are appropriate and
available, and should seek to apply them according to the individual
treatment needs of the prisoners”.
Principle 8 of the Basic Principles for the Treatment of Prisoners also
emphasizes the need for “meaningful remunerated employment which will
facilitate
[prisoners’] reintegration into the country’s labour market and permit them to
contribute to their own financial support and to that of their families”.
According to Rule 89 of the Standard Minimum Rules, “an untried prisoner
shall always be offered opportunity to work, but shall not be required to work. If
he
chooses to work, he shall be paid for it”. For further details as to the work of
convicted
persons, see Rules 71-76 of the Standard Minimum Rules.
All persons deprived of their liberty have the right to be treated with
humanity and respect for their dignity. This is a fundamental and
universal rule which must be guaranteed at all times and independently of
States’ available material resources.
Every detained or imprisoned person has the right not be subjected to
discrimination.
Except in exceptional circumstances, suspects shall be separated from
convicted prisoners; unconvicted detainees have the right to be presumed
innocent until proved guilty and therefore also have the right to more
favourable treatment than convicted prisoners.
States have the duty to provide convicted prisoners with teaching and
training aimed at their reformation and social rehabilitation.
4.2 Accommodation
While the general human rights conventions contain no details of the
requirements with regard to the accommodation of detainees and prisoners,
Rules 9-14
of the Standard Minimum Rules for the Treatment of Prisoners regulate, in
particular,
sleeping, working and sanitary conditions.
Thus, Rule 9(1) provides that “where sleeping accommodation is in
individual cells or rooms, each prisoner shall occupy by night a cell or room by
himself. If, for special reasons, such as temporary overcrowding, it becomes
necessary
for the central prison administration to make an exception to this rule, it is not
desirable
to have two prisoners in a cell or room” (emphasis added). Where dormitories
are used,
Lawyers 339
they shall only be occupied by prisoners “suitable to associate with one another
in those
conditions” (Rule 9(2)). All prison accommodation of persons deprived of their
liberty,
including in particular the sleeping accommodation, “shall meet all requirements
of
health, due regard being paid to climatic conditions and particularly to cubic
content of
air, minimum floor space, lighting, heating and ventilation” (Rule 10).
In all living and working places within places of detention, “the windows
shall be large enough to enable the prisoners to read or work by natural light,
and shall ...
allow the entrance of fresh air whether or not there is artificial ventilation” (Rule
11(a)).
“Artificial light shall be provided sufficient for the prisoners to read or work
without
injury to eyesight” (Rule 11(b)).
Lastly, “the sanitary installations shall be adequate to enable every prisoner
to comply with the needs of nature when necessary and in a clean and decent
manner”
(Rule 12; emphasis added).
*****
The African Commission on Human and Peoples’ Rights concluded that
article 5 of the African Charter was violated in the Ouko case, where the
complainant
alleged that the detention facility had a 250-watt electric bulb that had been left
on
throughout his ten-month-long detention; during this time, he had also been
denied
bathroom facilities and been subjected both to physical and to mental torture. In
the
view of the Commission these conditions contravened the complainant’s right to
respect for his dignity and freedom from inhuman and degrading treatment as
guaranteed by article 5 of the Charter.78 In addition to the specific conditions of
Vera
and Orton Chirwa, which were considered under subsection 2.3.2 above, the
African
Commission has also examined general prison conditions in Malawi. It concluded
that the following conditions “offend the dignity of the person and violate” article
5
of the African Charter: “the shackling of hands in the cell so that the prisoner is
unable to move (sometimes during the night and day), serving of rotten food,
solitary
confinement or overcrowding such that cells for 70 people are occupied by up to
200”. 79
*****
In the Greek case, the European Commission of Human Rights concluded
that accommodation in the Lakki camp violated article 3 of the European
Convention
on Human Rights because of “the conditions of gross overcrowding and its
consequences”; the dormitories could hold 100 to 150 persons.80
4.2.1 Separation of categories
78ACHPR, John D. Ouko v. Kenya, Communication No. 232/99, decision adopted during the 28th Ordinary
session, 23 October – 6 November
2000, paras. 22-33 of the text of the decision as published at
80Eur. Comm. HR, Applications Nos. 3321-3323/67 and 3344/67, Denmark, Norway, Sweden and the
Netherlands v. Greece, Report of the
Commission adopted on 5 November 1969, 12 Yearbook 1969, p. 497, para. 21 and p. 494, para. 14.
As noted above, international human rights law requires, in principle, that
accused persons be segregated from convicted prisoners and that they be given
separate
treatment appropriate to their status as unconvicted persons (cf. art. 10(2)(a) of
the
International Covenant on Civil and Political Rights and art. 5(4) of the American
Convention; see also in particular art. 8(b) of the Standard Minimum Rules).
As to accused children/minors,more specifically, both article 10(2)(b) of the
International Covenant and article 5(5) of the American Convention provide that
they
shall be separated from adults and brought to justice as soon as possible.
However,
according to article 37(c) of the Convention on the Rights of the Child, which
must be
considered as lex specialis as compared to the general human rights treaties,
“every child
deprived of liberty shall be separated from adults unless it is considered in
the child’s
best interest not to do so” (emphasis added). The best interest of the
individual child
may thus justify a departure from the basic rule that it shall be separated from
adults.81
Rule 8 of the Standard Minimum Rules for the Treatment of Prisoners is of a
more general scope and provides that “the different categories of prisoners shall
be
kept in separate institutions or parts of institutions taking account of their sex,
age,
criminal record, the legal reason for their detention and the necessities of their
treatment.” This means, in particular, that “men and women shall so far as
possible be
detained in separate institutions; in an institution which receives both men and
women
the whole of the premises allocated to women shall be entirely separate” (Rule
8(a) of
the Standard Minimum Rules, emphasis added).
The separation of women from men and children from adults is a first
indispensable, albeit not sufficient, measure to ensure the right to security of
these
particularly vulnerable persons. With regard in particular to children, it is also
essential
that the relevant places of detention have an adequate infrastructure and
specially
trained personnel who enable their specific needs and interests to be met.82
Further
details as to detained children and women will be given in Chapters 10 and 11.
In general, the accommodation of detainees and prisoners must be such
as
to respect their dignity, security and good health, with adequate sleeping,
living, working and sanitary conditions.
Children/minors who are deprived of their liberty shall be separated from
adults, unless such separation is not in their best interest; they shall be
brought to justice promptly.
To the extent possible men and women shall be held in separate
institutions.
Lawyers 341
81On the question of separation of detained children from detained adults, see Implementation Handbook
for the Convention on the
Rights of the Child (New York, UNICEF, 1998), pp. 501-502 (hereinafter referred to as UNICEF
Implementation Handbook).
82On the detention of children, see e.g. Eric Sottas and Esther Bron, Exactions et Enfants, Geneva,
OMCT/SOS Torture, 1993,
pp. 26-27.
4.3 Personal hygiene, food, health and

medical services
Without examining in detail the rules and case-law regarding the personal
hygiene, food, health and medical services of persons deprived of their liberty,
the
following main principles contained in the United Nations Standard Minimum
Rules
for the Treatment of Prisoners should be emphasized:
_ As to personal hygiene: “prisoners shall be required to keep their persons
clean,
and to this end they shall be provided with water and with such toilet articles as
are
necessary for health and cleanliness” (Rule 15).
_ As to clothing: “every prisoner who is not allowed to wear his own clothing
shall be
provided with an outfit of clothing suitable for the climate and adequate to keep
him
in good health. Such clothing shall in no manner be degrading or humiliating”
(Rule
17(1)). “All clothing shall be clean and kept in proper condition” (Rule 17(2));
“whenever a prisoner is removed outside the institution for an authorized
purpose,
he shall be allowed to wear his own clothing or other inconspicuous clothing”
(Rule
17(3)).
_ As to bedding: “Every prisoner shall, in accordance with local or national
standards, be provided with a separate bed, and with separate and sufficient
bedding
which shall be clean when issued, kept in good order and changed often enough
to
ensure its cleanliness” (Rule 19).
_ As to food: “Every prisoner shall be provided by the administration at the
usual
hours with food of nutritional value adequate for health and strength, of
wholesome
quality and well prepared and served”; “drinking water shall be available to
every
prisoner whenever he needs it” (Rule 20(1) and (2)).
_ As to health and medical services: there shall be “at least one qualified
medical
officer who should have some knowledge of psychiatry” at every place of
detention
and the medical services “should be organized in close relationship to the
general
health administration of the community or nation” (Rule 22(1)); “sick prisoners
who require specialist treatment shall be transferred to specialized institutions or
to
civil hospitals”, and where hospital facilities exist in the institution concerned,
they
shall have the equipment and supplies “proper for the medical care and
treatment of
sick prisoners and ... a staff of suitable trained officers” (Rule 22(2)); every
prisoner
shall also have at his or her disposal “the services of a qualified dental officer”
(Rule
22(3)).
In institutions for women there shall inter alia “be special accommodation for all
necessary pre-natal and post-natal care and treatment (Rule 23(1)).
Next, “the medical officer shall see and examine every prisoner as soon as
possible
after his admission and thereafter as necessary, with a view particularly to the
discovery of physical or mental illness and the taking of all necessary measures”
(Rule 24); the medical officer shall also “have the care of the physical and
mental
health of the prisoners and should daily see all sick prisoners, all who complain
of
illness, and any prisoner to whom his attention is specially directed” (Rule 25(1));
the
medical officer shall further “regularly inspect and advise the director” upon
such
issues as the quality of the food, the hygiene and cleanliness of the institution
and
prisoners, the sanitation, clothing and bedding etc. (Rule 26). Furthermore,
Principle 24 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment provides that “a proper medical examination
shall be offered to a detained or imprisoned person as promptly as possible after
his
admission to the place of detention or imprisonment, and thereafter medical
care
and treatment shall be provided whenever necessary. This care and treatment
shall
be provided free of charge.”
The international monitoring organs have examined numerous cases
involving conditions of detention and a few of these cases set out below will
illustrate
the views of these organs on such issues as lack of food, deficient hygiene and
alleged
lack of medical care.
*****
In the case of Freemantle, the following conditions of the author’s detention
amounted to a violation of article 10(1) of the International Covenant: the author
was
confined to a 2-metre-square cell for 22 hours each day, and remained isolated
from
other men for most of the day; he spent most of his waking hours in enforced
darkness,
had little to keep him occupied, and was not permitted to work or to undertake
education.83
In the case of Robinson, the Committee concluded that the following
conditions of the author’s imprisonment amounted to a violation of article 10(1)
of the
International Covenant: there was a complete lack of mattresses, other bedding
and
furniture in the cells, a desperate shortage of soap, toothpaste and toilet paper,
the
quality of food and drink was very poor, there was no integral sanitation in the
cells and
there were open sewers and piles of refuse, no doctor was available and the
author was
“confined to his cell for 22 hours every day in enforced darkness, isolated from
other
men, without anything to keep him occupied”.84
Among many other cases, article 10(1) of the International Covenant was also
violated in the case of Elahie, where the author complained that he only had “a
piece of
sponge and old newspapers” to sleep on, that he was given “food not fit for
human
consumption” and then “treated with brutality by the warders whenever
complaints
were made”.85
Article 10(1) of the Covenant was further violated in the case of Michael and
Brian Hill, who were not given any food during the first five days of police
detention in
Spain,86 while article 7 was violated in the case of Tshisekedi wa Mulumba, who
was
subjected to “inhuman treatment” after having been “deprived of food and drink
for
Lawyers 343
GAOR, A/55/40
(vol. II), p. 19, para. 7.3.
GAOR, A/55/40
(vol. II), p. 128, paras. 10.1-10.2.
85Communication No. 533/1993, H. Elahie v. Trinidad and Tobago (Views adopted on 28 July 1997), in UN
doc. GAOR, A/52/40
(vol. II), p. 37, para. 8.3.
A/52/40 (vol. II),
pp. 17-18, para. 13.
fours days after his arrest” and “subsequently kept interned under unacceptable
sanitary conditions”.87 Article 10(1) was also violated in the case of Kalenga,
where the
author complained, in particular, that he was denied recreational facilities,
occasionally
deprived of food and not given medical assistance when needed.88
In the view of the Committee, articles 7 and 10(1) of the Covenant were
violated in the Linton case following “the mock execution set up by prison
warders and
the denial of adequate medical care” to the author for the treatment of injuries
sustained in an aborted escape attempt; the treatment was considered to be
“cruel and
inhuman”.89
*****
In the case against Malawi, already dealt with under subsections 2.3.2 and 4.2,
the African Commission on Human and Peoples’ Rights held, moreover, that “the
inability of prisoners to leave their cells for up to 14 hours at a time, lack of
organised
sports, lack of medical treatment, poor sanitary conditions and lack of access to
visitors,
post and reading material” were all violations of article 5 of the Charter.90 The
Commission has also decided that to deny a detainee access to doctors while his
health is
deteriorating is a violation of article 16 of the African Charter, which guarantees
to every
individual “the right to enjoy the best attainable state of physical and mental
health” (art.
16(1)).91 Article 16 was also violated with regard to Ken Saro-Wiwa, whose health
while in
custody suffered to the point where his life was endangered; despite requests for
hospital
treatment made by a qualified prison doctor, such treatment was denied.92
The victim’s right to respect and dignity and his right to freedom from
inhuman and degrading treatment under article 5 were violated in a case where
the
person concerned had, in addition to having his legs and hands chained to the
floor day
and night, been refused permission to take a bath during his 147 days of
detention; he
had also been given food only twice daily and been kept in solitary confinement
prior to
his trial, in a cell meant for criminals.93
*****
87Communications Nos. 241 and 242/1987, F. Birindwa ci Birhashwirwa and E. Tshisekedi wa Malumba v.
Zaire (Views adopted on
2 November 1989), in UN doc. GAOR, A/45/40 (vol. II), p. 84, para. 13(b).
88Communication No. 326/1988, H. Kalenga v. Zambia (Views adopted on 27 July 1993), in UN doc. GAOR,
A/48/40 (vol. II),
p. 71, para. 6.5.
89Communication No. 255/1987, C. Linton v. Jamaica (Views adopted on 22 October 1992), in UN doc.
GAOR, A/48/40
(vol. II), p. 16, para. 8.5.
31 October 1998, para. 91 of the text of the decision as published at
92ACHPR, International Pen and Others (on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organisation) v.
Nigeria, Communications
Nos. 137/94, 139/94, 154/96 and 161/97, decision adopted on 31 October 1998, para. 112 of the text of the
decision as published at
23 October – 6 November 2000, paras. 70 and 72 of the text of the decision as published at
In the case of de Varga-Hirsch, the European Commission of Human Rights
held that “it cannot be excluded that detention of a person who is ill may raise
issues”
under article 3 of the European Convention. In that particular case, the applicant,
who
was in prolonged detention on remand, suffered from diabetes and cardio-
vascular
disorders; “[his] state of health was poor throughout his detention ... and it
became
worse”.94 The Commission pointed out, however, that the authorities had
“complied
with all the applicant’s requests for medical expert opinions” and where “the
reports
were lacking in precision, the authorities did not fail to appoint new experts”; in
all, 10
reports were drawn up, and “none of the expert opinions definitely reached the
conclusion that the applicant’s state of health was incompatible with
detention”.95
When the experts had recommended that the applicant be transferred to a
hospital, this
had also been done. The Commission further pointed out that the Government
had
noted that “the applicant had contributed to his bad state of health by refusing,
at a
certain period, his transfer to a prison hospital, not properly following his diabetic
diet
and refusing insulin treatment”.96 Given “the special circumstances of the case”,
the
applicant’s medical treatment during his detention did not amount to a violation
of
article 3 of the European Convention on Human Rights.97
State Responsibility for Prisoners on Hunger Strike
The Case of R., S., A. and C. v. Portugal
The responsibilities of the State for the health and well-being of prisoners on hunger
strike were inter alia at issue in a case against Portugal, involving four applicants, with
applicant R. only being examined by a medical team on the twenty-sixth day of his
hunger strike. The European Commission of Human Rights noted that it was
“certainly disturbing that such a long time could have elapsed without the applicants
being put under medical supervision”, but the question to be determined was “the
extent to which the national authorities were responsible for this situation”.98 The
Commission found it important to note that, as from the moment they began their
hunger strike, “the applicants always refused to be examined by the prison doctor”,
and two of the applicants – including applicant R. – even refused to be examined by a
team composed of three doctors from the Lisbon University Hospital, although one
of these appeared in a list supplied by the applicants stating the doctors of their
choice.99
Lawyers 345
94Eur. Comm. HR, Application No. 9559/81, P. de Varga-Hirsch v. France, decision of 9 May 1983 on the
admissibility, 33 DR, p. 213,
para. 6.
95Ibid., loc. cit.
96Ibid., pp. 213-214, para. 6.
98Eur. Comm. HR, Applications Nos. 9911/82 & 9945/82 (joined), R., S., A. and C. v. Portugal, 36 DR, p. 207,
para. 16.
99Ibid., pp. 207-208, para. 16.
State Responsibility for Prisoners on Hunger Strike
The Case of R., S., A. and C. v. Portugal (cont.d)
The deadlock was resolved on the twenty-sixth day of applicant R.’s hunger strike,
“when the prison authorities allowed the applicants to be visited by a team consisting
of a doctor appointed by the Medical Council, the prison doctor and a doctor of their
choice”. The team asked that the applicants be “hospitalised as a matter of urgency”,
which was done a few days later.100 The Commission’s reasoning in this case deserves
to be quoted in full:
“18. As the Commission has already emphasised, the Convention
requires that the prison authorities, with due regard to the ordinary
and reasonable requirements of imprisonment, exercise their
custodial authority to safeguard the health and well-being of all
prisoners, including those engaged in protest, in so far as that may be
possible in the circumstances. ... In situations of serious deadlock,
the public authorities must not entrench themselves in an
inflexible approach aimed more at punishing offenders against
prison discipline than at exploring ways of resolving the
deadlock... .
19. In the instant case, regrettable as it may be that the applicants
received no medical care for a long period during their hunger strike,
the fact remains that they were themselves to a large extent
responsible for this situation. In respecting the applicants’ refusal to
be examined by certain doctors, whose competence could not be
disputed, the Government acted in a manner about which the
applicants cannot complain. The Commission is unable to conclude
from the specific circumstances of these cases that the Portuguese
authorities showed inflexibility and allowed the applicants’ situation
to deteriorate to the extent that they were victims of inhuman
treatment or torture violating article 3 of the Convention.”101
The reasoning in the Portuguese case was based on the McFeeley case, which
arose in the dramatic context of Northern Ireland. The applicants in this case
wanted to
be recognized as political prisoners and therefore, inter alia, refused to wear
prison
clothes and work in prison. In return, they were given multiple punishments
including
periods of cellular isolation. In that particular case the Commission stated that it
“... must express its concern at the inflexible approach of the State
authorities which has been concerned more to punish offenders against
prison discipline than to explore ways of resolving such a serious deadlock.
Furthermore, the Commission is of the view that, for humanitarian
reasons, efforts should have been made by the authorities to ensure that
the applicants could avail of certain facilities such as taking regular exercise
100Ibid., p. 208, para. 17.
in the open air with some form of clothing (other than prison clothing) and
making greater use of the prison amenities under similar conditions. At the
same time, arrangements should have been made to enable the applicants
to consult outside medical specialists even though they were not prepared
to wear prison uniform or underwear.”102
Notwithstanding the above, and, “taking into consideration the magnitude of
the institutional problem posed by the protest and the supervisory and sanitary
precautions” the authorities had adopted to cope with it, their failure could not
lead the
Commission to conclude, prima facie, that article 3 of the European Convention
on
Human Rights had been violated in this case.103
More About the Need for
Medical Examination of Persons in Police Custody
In order to prevent the occurrence of torture and other forms of ill-treatment of
persons deprived of their liberty, the Committee against Torture has emphasized
“the need to allow suspects ... to be examined by an independent doctor immediately
upon their arrest, or after each session of questioning, and before they are brought
before an examining magistrate or released”.104
In its many reports to individual European Governments following visits to places of
detention, the European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment has recommended
_ that a person in police custody shall have the right to be examined by a doctor of
his choice;
_ that all medical examinations of persons in police custody be conducted out of the
hearing of police officers and preferably also out of their sight (unless the doctor
concerned requests otherwise); and that
_ the results of all medical examinations as well as relevant statements by the
detainees and the doctor’s conclusions be formally recorded by the doctor and
made available to the detainee and his lawyer.105
Lawyers 347
102Eur. Comm HR, Application No. 8317/78, T. McFeeley and Others v. the United Kingdom, decision of 15
May 1980 on the admissibility,
20 DR , p. 86, para. 64.
103Ibid., pp. 86-87, para. 65.
104Statement as to Switzerland, in UN doc. GAOR, A/53/44, p. 12, para. 96.
105See inter alia Council of Europe, docs.: (1) CPT/Inf (92) 4 Report to the Swedish Government on the Visit
to Sweden carried out by the
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment
(CPT) from 5 to 14 May 1991, p. 52; (2)
CPT/Inf (93) 13, Report to the Government of the Federal Republic of Germany on the visit to Germany
carried out by the European Committee for the
Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 8 to 20 December
1991, p. 70; (3) CPT/Inf (93) 8, Report to
the Finnish Government on the visit to Finland carried out by the European Committee for the Prevention of
Torture and Inhuman or Degrading Treatment
or Punishment (CPT) from 10 to 20 May 1992, p. 56.
Every person deprived of his or her liberty has the right and the duty to
keep clean and the right to be warm and in good health. To this end, he
or she shall be provided with the necessary hygienic equipment, clothing,
bedding, adequate food and medical and dental services.
Every person deprived of his or her liberty has the right to a cell of
adequate size and to enjoy daylight.
When dealing with detainees or prisoners staging protests or
hunger-strikes, the authorities must take care not to adopt an inflexible,
punitive approach but should instead explore avenues of dialogue and be
guided by a sense of humanity.
A person in police custody shall be allowed to be examined by a
physician of his or her own choice. Medical examinations shall be
conducted in private unless the doctor requests otherwise, and the result
of
the medical examinations shall be recorded by the doctor and made
available to the detainee and his or her lawyer.
4.4 Religion
Rule 6(1) of the Standard Minimum Rules for the Treatment of Prisoners,
Principle 2 of the Basic Principles for the Treatment of Prisoners and Principle
5(1) of
Detention
or Imprisonment prohibit discrimination on the basis of religion. Principle 3 of
the
Basic Principles adds, furthermore, that it is “desirable to respect the religious
beliefs
and cultural precepts of the group to which prisoners belong, whenever local
conditions so require”.
Rules 41 and 42 of the Standard Minimum Rules contain the following more
detailed regulations in this respect. In the first place, “if the institution contains a
sufficient number of prisoners of the same religion, a qualified representative of
that
religion shall be appointed or approved. If the number of prisoners justifies it and
conditions permit, the arrangement should be on a full-time basis” (Rule 41(1)).
A
qualified representative so appointed or approved “shall be allowed to hold
regular
services and to pay pastoral visits in private to prisoners of his religion at proper
times”
(Rule 41(2)). Furthermore, “access to a qualified representative of any religion
shall not
be refused to any prisoner”, but “if any prisoner should object to a visit of any
religious
representative, his attitude shall be fully respected” (Rule 41(3)). Lastly, “so far
as
practicable, every prisoner shall be allowed to satisfy the needs of his religious
life by
attending the services provided in the institution and having in his possession
the books
of religious observance and instruction of his denomination” (Rule 42).
Every person deprived of his or her freedom has the right not to be
discriminated against on the basis of religion. To the extent possible, the
religious convictions and cultural precepts of the detainees and prisoners
shall be respected, including the holding of regular services and the
organization of pastoral visits.
4.5 Recreational activities
According to Rule 21(1) of the Standard Minimum Rules, “every prisoner
who is not employed in outdoor work shall have at least one hour of suitable
exercise in
the open air daily if the weather permits”. As to “young prisoners, and others of
suitable
age and physique”, they “shall receive physical and recreational training during
the
period of exercise”, and, “to this end space, installations and equipment should
be
provided” (Rule 21(2)).
Principle 6 of the Basic Principles further provides that “all prisoners shall
have the right to take part in cultural activities and education aimed at the full
development of the human personality.”
Lastly, according to Principle 28 of the Body of Principles, “a detained or
imprisoned person shall have the right to obtain within the limits of available
resources,
if from public sources, reasonable quantities of educational, cultural and
informational
material, subject to reasonable conditions to ensure security and good order in
the place
of detention or imprisonment.”
*****
With regard to the police prisons in Zürich, Switzerland, the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment recommended that urgent measures be taken in order to ensure
that the
detained persons be authorized to exercise in the fresh air, at least one hour per
day, in
conditions permitting them to benefit therefrom fully and by guaranteeing their
right to
respect for their private life.106 This recommendation was made in response to
the
refusal of the detainees to exercise outside since they were afraid of being seen
by the
public handcuffed and accompanied by a police officer.107
Every person deprived of his or her liberty has the right to exercise
outdoors for a minimum of one hour daily in conditions
respecting his or her right to privacy. Certain categories of detainees and
prisoners may require special recreational training.
Detainees and prisoners shall have reasonable access to educational,
cultural and informational material.
Lawyers 349
106Council of Europe doc. CPT/Inf (93) 3, Report to the Swiss Federal Council on the Visit to Switzerland
carried out by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21
to 29 July 1991, p. 75 in the French
text.
107Ibid., p. 20, paras. 22-23.
4.6 Solitary confinement

The use of solitary confinement is not, per se, regulated in the international
human rights treaties, although numerous complaints relating to isolation during
detention and imprisonment have been brought to the attention of the
international
monitoring organs, which have given some further interpretative guidance with
regard
to recourse to this particularly serious form of confinement. As a starting point it
can be
said that the use of solitary confinement does not per se violate international
human
rights law such as articles 7 and 10(1) of the International Covenant, but that the
question of its lawfulness will depend on the aim, length and conditions of the
confinement in each particular case.
The Human Rights Committee has stated in its General Comment No. 20
that “prolonged solitary confinement of the detained or imprisoned person may
amount to acts prohibited by article 7” of the Covenant.108 It is noteworthy that
Principle 7 of the Basic Principles for the Treatment of Prisoners provides,
furthermore, that “efforts addressed to the abolition of solitary confinement as a
punishment, or to the restriction of its use, should be undertaken and
encouraged”
(emphasis added).
The Human Rights Committee examined the question of solitary
confinement in the Vuolanne case, which originated in a complaint from a
conscript
who had received a sanction of “10 days of close arrest, i.e. confinement in the
guardhouse without service duties”. The author claimed in particular that “he
was
locked in a cell of 2 x 3 metres with a tiny window, furnished only with a camp
bed, a
small table, a chair and a dim electric light” and, further, that “he was only
allowed out
of his cell for purposes of eating, going to the toilet and to take fresh air for half
an hour
daily”.109 The Committee concluded, however, that neither article 7 nor article
10(1)
had been violated in this case: in the first place, it did not appear that “the
solitary
confinement to which the author was subjected, having regard to its strictness,
duration
and the end pursued, produced any adverse physical or mental effects on him”,
and, in
the second place, “it [had] not been established that Mr. Vuolanne suffered any
humiliation or that his dignity was interfered with apart from the embarrassment
inherent in the disciplinary measure to which he was subjected”.110
However, the outcome was different in the case of Antonaccio, where the
Committee concluded that both article 7 and article 10(1) had been violated
because the
author was held in an underground cell and denied the medical attention his
condition
required; he had also been tortured for three months.111 Article 10(1) alone was
violated
in the case of Gómez de Voituret concerning the author’s detention in solitary
confinement for about seven months “in a cell almost without natural light”;
Article
10(1) was violated in this case because, in the view of the Committee, the author
“was
A/44/40, p. 249,
para. 2.2 and p. 250, para. 2.6.
110Ibid., p. 256, para. 9.2.
111Communication No. R.14/63, R. S. Antonaccio v. Uruguay (Views adopted on 28 October 1981), in UN
doc. GAOR, A/37/40,
p. 120, para. 20 as read in conjunction with p. 119, para. 16.2.
kept in solitary confinement for several months in conditions which failed to
respect
the inherent dignity of the human person”.112
The solitary confinement violated both articles 7 and 10(1) in the case of
Espinoza de Polay, in particular because of the author’s “isolation for 23 hours a
day in a
small cell” and the fact that he could not have more than 10 minutes’ sunlight a
day.113
*****
With regard inter alia to Norway and Sweden, the Committee against Torture
recommended that the use of solitary confinement be abolished, particularly
during the
period of pre-trial detention, other than in exceptional cases, such as when the
security
or the well-being of persons or property are in danger. It further
recommended that
the use of this exceptional measure be “strictly and specifically regulated by
law” and
subjected to judicial control.114
*****
When examining whether solitary confinement might violate article 3 of the
European Convention on Human Rights, the European Commission of Human
Rights
consistently examined the lawfulness of such a measure in the light of its
duration, the
objective pursued, and the effect that the measure may have on the
person
concerned. This approach was applied in the case of R. v. Denmark, where the
applicant
spent no fewer than 17 months in solitary confinement during his detention on
remand.
The Commission pointed out in this case that “when a measure of solitary
confinement
is considered, a balance must be struck between the requirements of the
investigation
and the effect which the isolation will have on the detained person”. Although
accepting that “the applicant was isolated for an undesirable length of time”, the
Commission concluded that “having regard to the particular circumstances of the
confinement in question, it was not of such severity as to fall within the scope of
article
3” of the Convention.115 The Commission noted in this respect that “the applicant
was
kept in a cell of approximately six square metres”; that “he was allowed to listen
to the
radio and watch television”; that throughout the relevant period he was “allowed
to
exercise in the open air for one hour every day”; that he could borrow books
from the
prison library; that he was in daily contact with prison staff several times a day
and
sometimes also with other persons in connection with police interrogations and
court
hearings; that he was under medical observation; and finally, that although he
was
subjected to restrictions with regard to visits during this period, “he was allowed
to
receive controlled visits by his family”.116
*****
Lawyers 351
112Communication No. 109/1981, T. Gómez de Voituret v. Uruguay (Views adopted on 10 April 1984), in UN
doc. GAOR,
A/39/40, p. 168, paras. 12.2-13.
doc. GAOR,
A/53/40 (vol. II), p. 42, para. 8.7.
114UN docs. GAOR, A/53/44, p. 17, para. 156 (Norway) and GAOR, A/52/44, p. 34, para. 225 (Sweden).
115Eur. Comm. HR, R. v. Denmark, Application No. 10263/83, R. v. Denmark, decision of 11 March 1985 on
the admissibility, 41 DR,
p. 154.
116Ibid., pp. 153-154.
The European Committee for the Prevention of Torture, which makes very
precise recommendations following its on-the-spot investigations, has
recommended
with regard to a place of detention in Switzerland, for instance, that the
instances in
which recourse is had to involuntary isolation should be clearly defined and it
should be
used only in exceptional circumstances; moreover, the isolation must be for “the
shortest possible period” and reviewed every three months, if need be on the
basis of a
socio-medical report.117 On this occasion the European Committee further
recommended that each prisoner who has his isolation prolonged must be
informed in
writing of the reasons for the measures unless there are imperative reasons of
security
why this should not be done. If need be, the prisoner should also be allowed to
benefit
from the assistance of counsel and be permitted to make his views known to the
competent authorities in case of prolongation of the isolation.118
4.6.1 Incommunicado detention
Incommunicado detention is a particularly severe form of solitary
confinement, where the persons deprived of their liberty have no access
whatever to
the outside world, with the result that they are at increased risk of being
subjected to
human rights abuses. Innumerable persons have been tortured, made to
disappear, and
even killed following the extensive use of incommunicado detention. The United
Nations Special Rapporteur on the question of torture has pointed out that
torture “is
most frequently practised during incommunicado detention”, and he has
therefore
proposed that such detention “be made illegal and persons held
incommunicado ... be
released without delay”.119 As will be seen below, the tendency of other
international
monitoring organs is also to discourage the use of this form of detention.
In its General Comment No. 20, the Human Rights Committee emphasized
that “provisions should also be made against incommunicado detention”, adding
that
“States parties should ensure that any places of detention be free from any
equipment
liable to be used for inflicting torture or ill-treatment”.120 After having considered
the
fourth periodic report of Chile, the Committee recommended that “the State
party
should reconsider its law on this issue with a view to eliminating incommunicado
detention altogether”.121 In connection with its consideration of the initial report
of
Switzerland, the Committee regretted that “in various cantons, detainees may be
held
incommunicado for periods ranging from 8 to 30 days or even, in some cases, for
indefinite periods”, and it recommended “that the discussions aimed at
harmonizing
the various cantonal laws on criminal procedure be intensified, with due respect
for the
provisions of the Covenant, particularly with regard to fundamental guarantees
during
police custody or incommunicado detention”.122
117Council of Europe doc. CPT/Inf (93) 3, Report to the Swiss Federal Council on the Visit to Switzerland
carried out by the European
Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 21
to 29 July 1991, p. 77.
118Ibid., loc. cit.
119UN doc. E/CN.4/1995/34, Report of the Special Rapporteur on the question of torture, para. 926(d).
122UN doc. GAOR, A/52/40 (vol. I), p. 20, para. 98 and p. 22, para. 109.
In the case of El-Megreisi, the author’s brother had been held incommunicado
in the Libyan Arab Jamahiriya for more than three years when he was finally
allowed a
visit by his wife in April 1992; on 23 March 1994, when the Committee adopted
its
views in the case, Mr. El-Megreisi was still in incommunicado detention. This fact
led
the Committee to conclude that, “by being subjected to prolonged
incommunicado
detention in an unknown location, [he was] the victim of torture and cruel and
inhuman treatment” contrary to articles 7 and 10(1) of the Covenant.123 Article
7 was
also violated in the case of Mukong, where the author “was kept incommunicado,
was
threatened with torture and death and intimidated, deprived of food, and kept
locked in
his cell for several days on end without the possibility of recreation”. Referring to
its
above-mentioned General Comment, the Committee also noted that “total
isolation of
a detained or imprisoned person may amount to acts prohibited by article 7”,
and it
concluded that Mr. Mukong had been subjected to “cruel, inhuman and
degrading
treatment” in this case contrary to that article.124 In several other cases the
Committee
considered that incommunicado detention for several weeks or months was
contrary to
article 10(1) of the Covenant, including in one case where such detention had
lasted for
15 days.125 However, these cases are of earlier date than those of El-Megreisi
and Mukong,
and it is therefore possible to conclude that the Committee has now adopted a
stricter
legal approach to the use of incommunicado detention.
Lastly, articles 7 and 10(1) were both violated in the case of Espinosa de Polay,
where the author was held incommunicado from 22 July 1992 until 26 April 1993
and
then again for one year following his conviction.126
*****
The Committee against Torture recommended that Peru abolish the period of
pre-trial incommunicado detention.127
*****
Lawyers 353
123Communication No. 440/1990, Y. El-Megreisi v. the Libyan Arab Jamahiriya (Views adopted on 23 March
1994), in UN doc.
GAOR, A/49/40 (vol. II), p. 130, para. 5.4; emphasis added.
GAOR, A/49/40
125Communication No. 147/1983, L. Arzuaga Gilboa v. Uruguay (Views adopted on 1 November 1985), in UN
doc. GAOR,
A/41/40, p. 133, para. 14 (15 days); and e.g. Communication No. 139/1983, H. Conteris v. Uruguay (Views
in UN doc. GAOR, A/40/40, p. 202, para. 10 (over three months).
doc. GAOR,
A/53/40 (vol. II), pp. 41-43, paras 8.4, 8.6 and 9. The conditions of the author’s detention and imprisonment
also violated articles 7
and 10(1) in various other ways: display of author to the press during transfer from one place of detention
to another; conditions of
solitary confinement.
127UN doc. GAOR, A/55/44, p. 15, para. 61(b).
In the case of Suárez Rosero, the Inter-American Court of Human Rights stated
that
“51. Incommunicado detention is an exceptional measure the purpose of
which is to prevent any interference with the investigation of the facts.
Such isolation must be limited to the period of time expressly established
by law. Even in that case, the State is obliged to ensure that the detainee
enjoys the minimum and non-derogable guarantees established in the
Convention and, specifically, the right to question the lawfulness of the
detention and the guarantee of access to effective defence during his
incarceration.”128
Mr. Suárez Rosero had been held incommunicado for 36 days, although
Ecuadoran law establishes that such detention may not exceed 24 hours;
consequently,
article 7(2) of the American Convention on Human Rights had been violated in
this
case.129 The Inter-American Court further explained that:
“90. One of the reasons that incommunicado detention is considered to be
an exceptional instrument is the grave effects it has on the detained person.
Indeed, isolation from the outside world produces moral and
psychological suffering in any person, places him in a particularly
vulnerable position, and increases the risk of aggression and arbitrary acts
in prisons.”130
The Inter-American Court concluded that, for the following reasons, the
incommunicado detention was cruel, inhuman and degrading treatment
violating
article 5(2) of the American Convention, an argument that was not contested by
Ecuador:
“91. The mere fact that the victim was for 36 days deprived of any
communication with the outside world, in particular with his family, allows
the Court to conclude that Mr. Suárez Rosero was subjected to cruel,
inhuman and degrading treatment, all the more so since it has been proven
that his incommunicado detention was arbitrary and carried out in violation of
Ecuador’s domestic laws. The victim told the Court of his suffering at
being unable to seek legal counsel or communicate with his family. He also
testified that during his isolation he was held in a damp underground cell
measuring approximately 15 square meters with 16 other prisoners,
without the necessary hygiene facilities, and that he was obliged to sleep on
newspaper; he also described the beatings and threats he received during
his detention. For all those reasons, the treatment to which Mr. Suárez
Rosero was subjected may be described as cruel, inhuman and
degrading.”131
128I-A Court HR, Suárez Rosero case v. Ecuador, judgment of November 12, 1997, in OAS doc.
129Ibid., paras. 48 and 52.
130Ibid., p. 301, para. 90.
131Ibid., pp. 301-302, para. 91.
In the case of Velásquez Rodríguez, which concerned the involuntary
disappearance of Mr. Velásquez, the Inter-American Court held that
“156. ... prolonged isolation and deprivation of communication are in
themselves cruel and inhuman treatment, harmful to the psychological
and moral integrity of the person and a violation of the right of any
detainee to respect for his inherent dignity as a human being. Such
treatment, therefore, violates Article 5 of the Convention, which
recognizes the right to integrity of the person...”.132
*****
The link between lack of prompt judicial intervention, isolation and
torture was highlighted in the Aksoy case, where, as was seen in subsection
2.3.2 above,
the applicant had been subjected to torture in violation of article 3 of the
European
Convention on Human Rights. In this case, the applicant was held
incommunicado for
at least fourteen days without judicial intervention, and then appeared before
the public
prosecutor with injuries to his arms. Although the Court accepted that the
investigation
of terrorist offences “undoubtedly presents the authorities with special
problems”, it
could not accept that it is necessary to hold a suspect for fourteen days without
judicial
intervention; this period was “exceptionally long, and left the applicant
vulnerable not
only to arbitrary interference with his right to liberty but also to torture”.133
Prompt
judicial intervention to examine the lawfulness of a deprivation of liberty is thus
instrumental in ensuring respect for a detained person’s physical and mental
integrity.
While not unlawful as such, the use of solitary confinement should be
limited to exceptional circumstances, in particular during pre-trial
detention. The lawfulness of solitary confinement depends on an
assessment of its purpose, length and conditions.
Solitary confinement should only be used when the security or the
well-being of persons or property are in danger and should be subject to
regular judicial supervision.
Solitary confinement should not be used as a punishment.
Incommunicado detention is a particularly serious form of solitary
confinement and should be declared illegal. Prolonged isolation constitutes
per se torture and cruel and inhuman treatment.
It is unlawful to prevent people held incommunicado from challenging the
legality of their detention or from effectively preparing their defence.
Prompt judicial intervention to examine the lawfulness of a deprivation of
liberty is instrumental in ensuring respect for a detained person’s physical
and mental integrity.
Lawyers 355
132I-A Court HR, Case of Velásquez Rodríguez v. Honduras, judgment of July 29, 1988, Series C, No. 4, p.
Cf. also ibid., p. 159, para. 187.
133Eur. Court HR, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2282, para. 78.
5. Contacts with the Outside

World
A fundamental premiss when dealing with the right of detainees and prisoners
to maintain contact with the world outside the institutions where they are held is
that,
like free persons, those deprived of their liberty enjoy all the human rights
guaranteed
by international law, subject of course to those restrictions that are an
unavoidable
consequence of the confinement.134 This means, inter alia, that no detainee or
prisoner
“shall ... be subjected to arbitrary or unlawful interference with his privacy,
family,
home or correspondence” (art. 17 of the International Covenant on Civil and
Political
Rights).
5.1 Contact with family members and friends:
visits and correspondence
Rule 37 of the Standard Minimum Rules provides that “prisoners shall be
allowed under necessary supervision to communicate with their family and
reputable
friends at regular intervals, both by correspondence and by receiving visits.”
Prisoners
who are foreign nationals “shall be allowed reasonable facilities to communicate
with
the diplomatic and consular representatives of the State to which they belong”,
or “with
the diplomatic representative of the State which takes charge of their interests
or any
national or international authority whose task it is to protect such persons” (Rule
38(1)
and (2)). Furthermore, according to Rule 92:
“92. An untried prisoner shall be allowed to inform immediately his
family of his detention and shall be given all reasonable facilities for
communicating with his family and friends, and for receiving visits from
them, subject only to restrictions and supervision as are necessary in the
interests of the administration of justice and of the security and good order
of the institution.”
Principle 15 of the Body of Principles provides that “communication of the
detained or imprisoned person with the outside world, and in particular his family
or
counsel, shall not be denied for more than a matter of days”. Further, Principle
16(1) of
the Body of Principles stipulates that:
“1. Promptly after arrest and after each transfer from one place of
detention or imprisonment to another, a detained or imprisoned person
shall be entitled to notify or to require the competent authority to notify
members of his family or other appropriate persons of his choice of his
arrest, detention or imprisonment or of the transfer and of the place where
he is kept in custody.”
134Cf. in particular statement by the Human Rights Committee in its General Comment No. 21 on article 10,
in United Nations
Compilation of General Comments, para. 3 at p. 142.
According to Principle 16(4) such notification “shall be made or permitted to
be made without delay” (emphasis added), although “the competent authority
may ...
delay a notification for a reasonable period where exceptional needs of the
investigation
so require”. The United Nations Special Rapporteur on torture has recommended
in
this respect that “in all circumstances, a relative of the detainee should be
informed of
the arrest and place of detention within 18 hours”,135 a time-limit that does
however
seem to be unduly long, given that many cases of severe torture and involuntary
disappearance take place during the very first hours following an arrest.
Lastly, according to Principle 19 of the Body of Principles:
“A detained or imprisoned person shall have the right to be visited by and
to correspond with, in particular, members of his family and shall be given
adequate opportunity to communicate with the outside world, subject to
reasonable conditions and restrictions as specified by law or lawful
regulations.”
The refusal of the prison authorities to allow a detainee or prisoner to write to,
and receive visits by, family members, may violate both article 7 and article
10(1) of the
International Covenant on Civil and Political Rights. For instance, in the case of
Espinoza de Polay referred to above, the author was not only refused visits by his
family
during the year following his conviction, but was also unable either to receive
from, or
to send correspondence to, his family. These facts constituted inhuman
treatment
contrary to article 7 of the Covenant and also violated article 10(1).136 However,
it is not
clear exactly when, and how frequently, in the Committee’s view, a prisoner
should be
allowed to see or communicate with his family.
In the case of Estrella, article 17 read in conjunction with article 10(1) was
violated because of the extent to which the author’s correspondence was
censored and
restricted at Libertad prison in Uruguay.137 Mr. Estrella claimed that prison
officials
arbitrarily deleted sentences and refused to dispatch letters; during his entire
detention
of two years and four months he was allegedly given only 35 letters and during a
seven-month-long period he was given none.138 With regard to the censorship of
Mr.
Estrella’s correspondence, the Committee accepted
“... that it is normal for prison authorities to exercise measures of control
and censorship over prisoners’ correspondence. Nevertheless, article 17 of
the Covenant provides that ‘no one shall be subjected to arbitrary or
unlawful interference with his correspondence’. This requires that any
such measures of control or censorship shall be subject to satisfactory legal
safeguards against arbitrary application... . Furthermore, the degree of
restriction must be consistent with the standards of humane treatment of
detained persons required by article 10 (1) of the Covenant. In particular,
prisoners should be allowed under necessary supervision to communicate
with their family and reputable friends at regular intervals, by
Lawyers 357
135UN doc. E/CN.4/1995/34, Report of the Special Rapporteur on torture, para. 926(d).
doc. GAOR,
A/53/40 (vol. II), p. 42, para. 8.6.
GAOR, A/38/40,
p. 159, para. 10.
138Ibid., p. 154, para. 1.13.
correspondence as well as by receiving visits. On the basis of the
information before it, the Committee finds that Miguel Angel Estrella’s
correspondence was censored and restricted at Libertad prison to an
extent which the State party has not justified as compatible with article 17
read in conjunction with article 10 (1)of the Covenant.”139
*****
The most detailed arguments relating to prisoners’ correspondence have been
made by the European Court of Human Rights, and the relevant complaints have
been
examined under articles 6(1) and 8 of the European Convention on Human
Rights,
these articles respectively guaranteeing, among others, the right of access to a
court and
the right to respect for one’s correspondence. As far as article 6(1) is concerned,
it will
be considered below under section 5.2.
While article 8(1) of the European Convention provides that “everyone has
the right to respect for his private and family life, his home and his
correspondence”,
paragraph 2 allows for the following restrictions on the exercise of this right:
“2. There shall be no interference by a public authority with the exercise
of this right except such as is in accordance with the law and is necessary in
a democratic society in the interests of national security, public safety or
the economic well-being of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the protection of the
rights and freedoms of others.”
Whenever a detainee’s or a prisoner’s correspondence has been stopped or
delayed, such measures must consequently, in order to be lawful, be taken “in
accordance with the law” for one or more of the legitimate aims enumerated
therein
and be “necessary in a democratic society” for such aim or aims. However, most
problems raised before the international monitoring organs have concerned the
interference with correspondence to lawyers rather than family members, and it
is that
particular aspect that will be emphasized below.
5.1.1 The rights of visitors to detainees and prisoners
The rights of visitors to people deprived of their liberty arose under the
American Convention on Human Rights in a case against Argentina. The
complaint
concerned the situation of a woman and her thirteen-year-old daughter, both of
whom
were required to undergo a vaginal inspection before each personal-contact visit
with
the man who was their husband and father respectively. The petitioners alleged
before
the Inter-American Commission on Human Rights that these inspections
constituted
an illegitimate interference with the exercise of their right to family, as well as
their right
to privacy, honour and dignity and their right to physical integrity, contrary to
articles
17, 11 and 5 of the American Convention on Human Rights.140
139Ibid., pp. 158-159, para. 9.2.
140I-A Comm. HR, Report No. 38/96, Case 10.506 v. Argentina, October 15, 1996, in OAS doc.
OEA/Ser.L/V/II.95, doc. 7 rev.,
Annual Report of the Inter-American Commission on Human Rights 1996, pp. 58-59, para. 48.
In examining these allegations, the Commission held, in the first place, that
“a measure as extreme as the vaginal search or inspection of visitors, that
involves a
threat of violation to a number of the rights guaranteed under the Convention,
must be
prescribed by law which clearly specifies the circumstances when such a
measure may
be imposed and sets forth what conditions must be obeyed by those applying
this
procedure so that all persons subjected to it are granted as full a guarantee as
possible
from its arbitrary and abusive application.”141 Second, the Commission did not
question the need for general searches prior to entry into prisons; in its view,
however,
“vaginal searches or inspections are nevertheless an exceptional and very
intrusive type
of search”; although “the measure in question may be exceptionally adopted to
guarantee security in certain specific cases, it cannot be maintained that its
systematic
application to all visitors is a necessary measure in order to ensure public
safety”.142
The Commission then explained, thirdly, that, for a vaginal search or
inspection to be lawful in a particular case, it would have to comply with the
following
four conditions:
_ “it must be absolutely necessary to achieve the security objective in the
particular
case”;
_ “there must not exist an alternative option”;
_ “it should be determined by judicial order”; and, lastly,
_ “it must be carried out by an appropriate health professional”.143
Applying these principles to the case under examination, the Commission
found that:
_ the measure might “have been justifiable immediately after Mr. X was found to
be in
possession of explosives”, but the same could not be said of “the numerous
times
the measure was applied prior to that occasion”;144
_ there were “other more reasonable options ... available to the authorities in
order to
ensure security in the prison”;145
_ the State had a legal duty under the American Convention “to request a judicial
order to execute the search”, which was not done;146
_ the petitioners’ rights were interfered with since the intrusive measure was not
accompanied by “appropriate guarantees”. The Commission insisted “that any
type
of corporal probing ... must be performed by amedical practitioner with the
strictest
observance of safety and hygiene, given the potential of physical and moral
injury to
individuals.”147
Lawyers 359
141Ibid., pp. 63-64, para. 64.
142Ibid., p. 64, para. 68.
143Ibid., p. 65, para. 72.
144Ibid., pp. 65-66, para. 73.
145Ibid., p. 67, para. 80.
146Ibid., p. 68, para. 83.
147Ibid., paras. 84-85.
In conclusion the Commission found that “when the prison authorities ...
systematically performed vaginal inspections on Ms. X and [Ms.] Y they violated
their
rights to physical and moral integrity, in contravention of Article 5 of the
Convention.”148 These searches also violated “the petitioners’ rights to honour
and
dignity, protected by Article 11 of the Convention”.149 The requirement that the
petitioners undergo such inspections each time they wished to have a personal-
contact
visit with Mr. X further “interfered unduly with” their family rights as guaranteed
by
article 17 of the Convention.150 Lastly, as to the daughter, the searches violated
the
rights of the child as protected by article 19 of the Convention.151 In organizing
family
visits in places of detention, the authorities must, in other words, take care to do
so in a
manner that also respects the rights and freedoms of the visitors.
5.2 Contact with lawyers: visits and correspondence
Contacts between a lawyer and his clients are privileged and confidential and
this basic rule also continues to apply when the clients are deprived of their
liberty. Rule
93 of the Standard Minimum Rules stipulates in this respect that:
“93. For the purposes of his defence, an untried prisoner shall be allowed
to apply for free legal aid where such aid is available, and to receive visits
from his legal adviser with a view to his defence and to prepare and hand to
him confidential instructions. For these purposes, he shall if he so desires
be supplied with writing material. Interviews between the prisoner and his
legal adviser may be within sight but not within the hearing of a police or
institution official.”
This same issue is also covered by Principle 18 of the Body of Principles,
which reads as follows:
“1. A detained or imprisoned person shall be entitled to communicate
and consult with his legal counsel.
2. A detained or imprisoned person shall be allowed adequate time and
facilities for consultation with his legal counsel.
3. The right of a detained or imprisoned person to be visited by and to
consult and communicate, without delay or censorship and in full
confidentiality, with his legal counsel may not be suspended or restricted
save in exceptional circumstances, to be specified by law or lawful
regulations, when it is considered indispensable by a judicial or other
authority in order to maintain security and good order.
148Ibid., p. 69, para. 89.
149Ibid., p. 70, para. 94.
150Ibid., p. 72, para. 100.
151Ibid., p. 73, para. 105.
4. Interviews between a detained or imprisoned person and his legal
counsel may be within sight, but not within the hearing, of a law
enforcement official.
5. Communications between a detained or imprisoned person and his
legal counsel mentioned in the present principle shall be inadmissible as
evidence against the detained or imprisoned person unless they are
connected with a continuing or contemplated crime.”
Apart from the importance of seeking legal advice for purposes of preparing a
criminal defence, the Human Rights Committee has also emphasized, in
connection
with the risk of ill-treatment of persons deprived of their liberty, that “the
protection of
the detainee ... requires that prompt and regular access be given to doctors and
lawyers
and, under appropriate supervision when the investigation so requires, to family
members”.152 The cases referred to above in connection with incommunicado
detention illustrate the imperative need for this rule to be effectively applied at
all times.
For examples of cases concerning a suspect’s right of access to a lawyer in
order to defend himself, see above, Chapter 5, section 7, Chapter 6, subsection
6.4 and
Chapter 7, subsection 3.5.
*****
The case of Tomlin brought under the International Covenant on Civil and
Political Rights concerned the alleged interference with a letter from a prisoner
to his
lawyer. The author submitted that a letter he wrote to his lawyer on 22 April
1991
concerning his petition for special leave to appeal to the Judicial Committee of
the Privy
Council was not mailed by the prison authorities until 10 July 1991; the
Government
denied this, affirming that there was “no evidence whatsoever of any arbitrary or
unlawful interference with the author’s correspondence”.153 The Human Rights
Committee accepted that the material before it “did not reveal that the State
party’s
authorities, in particular the prison administration, withheld the author’s letter
for a
period exceeding two months”. It could not therefore conclude that there had
been an
“arbitrary” interference with the author’s right to privacy under article 17(1) of
the
Covenant.154 It added nonetheless that it considered that such long delay “could
raise
an issue in respect of article 14, paragraph 3 (b) of the Covenant inasmuch as it
could
constitute a breach of the author’s right to freely communicate with his counsel.
Nevertheless, as this delay did not adversely affect the author’s right to prepare
adequately his defence”, it could not be considered to violate article 14(3)(b).155
Lawyers 361
152General Comment No. 20, United Nations Compilation of General Comments, p. 140, para. 11.
153Communication No. 589/1994, C. Tomlin v. Jamaica (Views adopted on 16 July 1996), in UN doc. GAOR,
A/51/40 (vol. II),
p. 193, paras. 3.7 and 4.5.
154Ibid., p. 195, para. 8.3.
155Ibid., loc. cit.
Questions regarding the Tomlin case:
_ Should it matter that a delay in sending on a letter from a client-prisoner to his
lawyer did not in fact have any adverse consequences for his legal defence?
_ Why did the Human Rights Committee continue to examine the case under article
14 of the Covenant, although it had found that there was no evidence of the
authorities having withheld the letter and interfered arbitrarily with the author’s
right to privacy under article 17(1)?
_ Compare the Committee’s reasoning with that of the European Court of Human
Rights below. What are the differences? Are those differences legally justified?
_ Should the Committee in your view uphold its ruling in the Tomlin case in future
communications?
*****
The question of prisoners’ correspondence has been considered on numerous
occasions by the European Court of Human Rights, the opinions of which provide
important clarifications as to the right of a detainee or prisoner to communicate
with
his or her lawyer either for defence purposes or in order to complain about prison
conditions and treatment. Although the European Court has in principle accepted
that
it may be necessary to interfere with a prisoner’s correspondence for “the
prevention of
disorder or crime” under article 8(2) of the European Convention on Human
Rights,
such measures must be proportionate to the legitimate aim pursued in a
democratic
society and regard must in this respect be had to the Government’s margin of
appreciation.156 On the extent of the control of correspondence, the Court has
stated:
“45. It has also been recognised that some measure of control over
prisoners’ correspondence is called for and is not of itself incompatible
with the Convention, regard being paid to the ordinary and reasonable
requirements of imprisonment ... . In assessing the permissible extent of
such control in general, the fact that the opportunity to write and to receive
letters is sometimes the prisoner’s only link with the outside world should ,
however, not be overlooked.
46. It is clearly in the general interest that any person who wishes to
consult a lawyer should be free to do so under conditions which favour full
and uninhibited discussion. It is for this reason that the lawyer-client
relationship is, in principle, privileged. Indeed, in its S. v. Switzerland
judgment of 28 November 1991 the Court stressed the importance of a
prisoner’s right to communicate with counsel out of earshot of the prison
authorities. It was considered, in the context of Article 6, that if a lawyer
were unable to confer with his client without such surveillance, and receive
confidential instructions from him his assistance would lose much of its
usefulness, whereas the Convention is intended to guarantee rights that are
practical and effective... .
156Eur. Court HR, Case of Campbell v. the United Kingdom, judgment of 25 March 1992, Series A, No. 233,
p. 18, para. 44.
47. In the Court’s view, similar considerations apply to a prisoner’s
correspondence with a lawyer concerning contemplated or pending
proceedings where the need for confidentiality is equally pressing,
particularly where such correspondence relates ... to claims and complaints
against the prison authorities. That such correspondence be susceptible to
routine scrutiny, particularly by individuals or authorities who may have a
direct interest in the subject matter contained therein is not in keeping with
the principles of confidentiality and professional privilege attaching to
relations between a lawyer and his client.
48. Admittedly, ... the borderline between mail concerning
contemplated litigation and that of a general nature is especially difficult to
draw and correspondence with a lawyer may concern matters which have
little or nothing to do with litigation. Nevertheless, the Court sees no
reason to distinguish between the different categories of correspondence
with lawyers which, whatever their purpose, concern matters of a private
and confidential character. In principle, such letters are privileged under
Article 8.
This means that the prison authorities may open a letter from a lawyer to a
prisoner when they have reasonable cause to believe that it contains an
illicit enclosure which the normal means of detection have failed to
disclose. The letter should, however, only be opened and should not be
read. Suitable guarantees preventing the reading of the letter should be
provided, e.g. opening the letter in the presence of the prisoner. The
reading of a prisoner’s mail to and from a lawyer, on the other hand, should
only be permitted in exceptional circumstances when the authorities have
reasonable cause to believe that the privilege is being abused in that the
contents of the letter endanger prison security or the safety of others or are
otherwise of a criminal nature. What may be regarded as ‘reasonable cause’
will depend on all the circumstances but it presupposes the existence of
facts or information which would satisfy an objective observer that the
privileged channel of communication was being abused... .”157
In the case of Campbell, the European Court stated furthermore with regard to
the automatic control of correspondence that “the right to respect for
correspondence is of special importance in a prison context where it may be
more
difficult for a legal adviser to visit his client in person because ... of the distant
location
of the prison”, and that “the objective of confidential communication with a
lawyer
could not be achieved if this means of communication were the subject of
automatic
control”.158 Finally, “the mere possibility of abuse” by solicitors who might not
comply
with the rules of their profession “is outweighed by the need to respect the
confidentiality attached to the lawyer-client relationship”.159 Considering that
there was
“no pressing social need” for the opening and reading of Mr. Campbell’s
correspondence with his solicitor, it constituted a violation of article 8 of the
European
Convention.160
Lawyers 363
157Ibid., pp. 18-19, paras. 45-48.
158Ibid., p. 20, para. 50.
159Ibid., para. 52 at p. 21.
160Ibid., p. 21, paras. 53-54.
In the Golder case, the applicant complained about the refusal of the Home
Secretary to grant him permission to bring a civil action for libel against a prison
officer.
The Court concluded that it “was not for the Home Secretary himself to appraise
the
prospects of the action contemplated” by Mr. Golder, but that it was “for an
independent and impartial court to rule on any claim that might be brought. In
declining to accord the leave which had been requested, the Home Secretary
failed to
respect, in the person of Golder, the right to go before a court as guaranteed by
Article 6 § 1”.161 In the view of the European Court, the refusal to let Mr. Golder
correspond with his lawyer for the purpose of seeking legal advice with regard to
the
libel action also violated article 8 of the European Convention in that it was not
an
interference with his right to respect for his correspondence that could be
justified as
being necessary in a democratic society for any of the legitimate purposes
enumerated
therein.162
The case of Silver and Others raised numerous instances of interference with
prisoners’ correspondence, and article 8 of the European Convention had inter
alia
been violated where the stopping of letters was based on the following principal
or
subsidiary grounds: (1) restriction on communication in connection with any
legal or
other business, including a letter to the National Council for Civil Liberties; (2)
prohibition on complaints calculated to hold the authorities up to contempt; and
(3)
prohibition on the inclusion in letters to legal advisers and Members of
Parliament of
complaints that had not yet been through the prior internal prison ventilation
system.163
The stopping of the letters concerned was not considered to be necessary in a
democratic society for the various purposes indicated by the United Kingdom
Government.
Article 8 of the European Convention was also violated in the case of
McCallum insofar as, for instance, the applicant’s letters to his solicitor and
Member of
Parliament had been stopped because they contained complaints about prison
treatment that should first have been addressed to the competent prison
authorities
(prior internal ventilation rule); the fact that the Prison Visiting Committee had
imposed on the applicant a disciplinary award which included an absolute
prohibition
for 28 days on all correspondence, also violated article 8 of the
Convention.164
*****
Lastly, it should be noted in this respect that while the African Charter on
Human and Peoples’ Rights does not guarantee the right to respect for one’s
private
life, family life and correspondence, this right is contained in article 11 of the
American
Convention on Human Rights.
161Eur. Court HR, Golder Case v. the United Kingdom, judgment of 21 February 1975, Series A, No. 18, para.
40 at p. 20.
162Ibid., pp. 21-22, para. 45.
163Eur. Court HR, Case of Silver and Others v. the United Kingdom, judgment of 25 March 1983, Series A,
No. 61, pp. 38-38, para. 99.
164Eur. Court HR, McCallum Case v. the United Kingdom, judgment of 30 August 1990, Series A, No. 183, p.
15, para. 31.
Persons deprived of their liberty have the right to enjoy the same human
rights as persons at liberty, subject only to those restrictions that are an
unavoidable consequence of the confinement.
First, detainees and prisoners have the right to contact their families or
friends without delay upon arrest or detention. Further, throughout their
deprivation of liberty they have a right to maintain contact with families
and friends through visits and correspondence at regular intervals. Any
interference with this right must not be arbitrary (International Covenant
on Civil and Political Rights) and must be based on law, imposed for
legitimate purposes, and necessary in a democratic society for such
purposes (European Convention on Human Rights).
Second, persons deprived of their liberty have a right to be regularly
visited by, and consult and communicate with, their lawyers through
correspondence that shall be transmitted without delay and preserving the
full confidentiality of the lawyer-client relationship. During visits by their
lawyers, detainees and prisoners shall be able to confer within sight but
not within the hearing of law enforcement officials.
In order to help ensure their right to personal security, all persons
deprived of their liberty have a right to unhindered communication for the
purpose of bringing complaints concerning, in particular, allegedly
unsatisfactory conditions of detention, torture and other forms of
ill-treatment.
In organizing family visits, prison authorities must ensure that the rights
and freedoms of the visiting persons are respected.
6. Inspection of Places of Detention
and Complaints Procedures
6.1 Inspection of places of detention
As pointed out by the United Nations Special Rapporteur on the question of
torture, “regular inspection of places of detention, especially when carried out as
part of
a system of periodic visits, constitutes one of the most effective preventive
measures
against torture. Inspections of all places of detention, including police lock-ups,
pre-trial detention centres, security service premises, administrative detention
areas and
prisons, should be conducted by teams of independent experts”, whose
members “should
be afforded an opportunity to speak privately with detainees” and should also
report
publicly on their findings.165 Given the importance of the regular inspection of
penal
institutions, the Human Rights Committee has expressed concern “at the lack of
an
Lawyers 365
165UN doc. E/CN.4/1995/34, Report of the Special Rapporteur on torture, para. 926(c).
independent system of supervision of: (a) abuses of human rights by police
officers; (b)
the conditions in penal institutions, including those for juvenile offenders; and (c)
complaints of violence or other abuse by members of the Prison Service”.166
*****
The Committee against Torture has also recommended that “independent
governmental bodies consisting of persons of high moral standing should be
appointed
to take over the inspection of detention centres and places of imprisonment.”167
*****
Similarly, the European Committee for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment has recommended that the
Swedish
authorities “explore the possibility of establishing a system under which each
prison
establishment would be visited on a regular basis by an independent body, which
would
possess powers to inspect the prison’s premises and hear complaints from
inmates
about their treatment in the establishment”.168
6.2 Complaints procedures (See also above,
section 2.2, “Legal responsibilities of States”)
In General Comment No. 20, the Human Rights Committee emphasized that
“the right to lodge complaints against maltreatment prohibited by article 7 must
be
recognized in the domestic law”, and that “complaints must be investigated
promptly
and impartially by competent authorities so as to make the remedy effective”.169
This is
simply a logical consequence of the twin duties the States parties have
undertaken
under article 2(1) and (3) of the Covenant, “to respect and to ensure” the rights
recognized therein and to provide alleged victims of violations with an “effective
remedy”. The Human Rights Committee has emphasized that “the need to make
effective remedies available to any person whose rights are violated is
particularly
urgent in respect of the obligations embodied in articles 7, 9 and 10 of the
Covenant.”170
On another occasion, it recommended that the State party “establish an
independent
body with authority to receive and investigate all complaints of excessive use of
force
and other abuses of power by the police and other security forces”.171
*****
166See as to Japan, UN doc. GAOR, A/54/40 (vol. I), p. 67, para. 350. See also as to Mexico, insofar as there
was no independent
body to investigate the substantial number of complaints regarding acts of torture and other forms of ill-
treatment, ibid., p. 62,
para. 318.
167See with regard to Namibia, UN doc. GAOR, A/52/44, p. 37, para. 244.
168Council of Europe doc. CPT/Inf (92) 4, Report to the Swedish Government on the Visit to Sweden Carried
out by the European Committee
for the Prevention or Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 5 to 14 May
1991, p. 57, para. 5(a).
170As to Latvia, see UN doc. GAOR, A/50/40, p. 63, para. 344.
171As to Chile, see UN doc. GAOR, A/54/40 (vol. I), p. 45, para. 206.
The Committee against Torture has also recommended that the States parties
to the Convention against Torture “introduce an effective and reliable complaint
system that will allow the victims of torture and other forms of cruel, inhuman or
degrading treatment or punishment to file complaints”,172 such as against
members of
the police department.173 The Committee has further suggested “the
establishment of a
central register containing adequate statistical data about complaints of torture
and
other inhuman or degrading treatment or punishment, investigation of such
complaints, the time within which the investigation is conducted and any
prosecution
mounted thereafter and its outcome.”174
*****
Article 25(1) of the American Convention on Human Rights guarantees the
right to judicial protection in that “everyone has the right to simple and prompt
recourse, or any other effective recourse, to a competent court or tribunal for
protection against acts that violate his fundamental rights recognized by the
constitution or laws of the State concerned or by this Convention.”
Inherently linked to this right to an effective recourse for alleged human rights
violations is, of course, the duty of the States parties to investigate and punish
the
allegations concerned, a duty that is based on article 1(1) of the American
Convention.175 The obligation to investigate “must be undertaken in a serious
manner
and not as a mere formality preordained to be ineffective”, and it “must have an
objective and be assumed by the State as its own legal duty”.176
It follows that all complaints as to torture and other forms of ill-treatment of
persons deprived of their liberty or complaints regarding any other aspect of
detention
and imprisonment that might violate human rights standards must be
investigated in
such manner, that “appropriate punishment” must be imposed on those
responsible
for the human rights violations concerned, and that the victims must in turn be
ensured
“adequate compensation”.177 It is recalled that the duty to investigate is an
essential
element in the obligation of the States parties to “take reasonable steps to
prevent
human rights violations”;178 if the perpetrators of such violations know there will
be no
serious investigations of their acts, they will have no motivation to stop
committing
them, with the likely result that a climate of impunity will take hold in the
society in
question.
Lawyers 367
172See with regard to Poland, UN doc. GAOR, A/55/44, p. 22, para. 94.
173See with regard to Namibia, UN doc. GAOR, A/52/44, p. 37, para. 244.
174See with regard to Cuba, UN doc. GAOR, A/53/44, p. 14, para. 118(g).
175I-A Court HR, Villagrán Morales et al. Case (The “Street Children” Case), judgment of November 19,
1999, Series C, No. 63, pp. 194-195,
para. 225.
177Ibid., p. 155, para. 174.
The Inter-American Court has thus found violations of the States parties’
legal duties to investigate and punish in several cases where people have
disappeared or
been found dead after having been abducted, held illegally and tortured.179
*****
Article 13 of the European Convention on Human Rights also provides the
right to “an effective remedy” and, in the words of the European Court of Human
Rights, this means that there must be available at the national level “a remedy
to enforce
the substance of the Convention rights and freedoms in whatever form they
might
happen to be secured in the domestic legal order”. Although “the Contracting
States
are afforded some discretion as to the manner in which they conform to their
Convention obligations under this provision”, the remedy required thereby “must
be
‘effective’ in practice as well as in law, in particular in the sense that its exercise
must not
be unjustifiably hindered by the acts or omissions of the authorities of the
respondent
State”.180 In the case of Çakici, which concerned the disappearance of the
applicant’s
brother, the Court held furthermore that:
“Given the fundamental importance of the rights in issue, the right to
protection of life and freedom from torture and ill-treatment, Article 13
imposes, without prejudice to any other remedy available under the
domestic system, an obligation on States to carry out a thorough and
effective investigation apt to lead to those responsible being identified and
punished and in which the complainant has effective access to the
investigative proceedings.”181
Article 13 was thus violated in the case of Çakici because the Turkish
Government had failed to comply with its obligation “to carry out an effective
investigation into the disappearance of the applicant’s brother”, a failure that
also
“undermined the effectiveness of any other remedies which might have
existed”.182
In this respect, the legal obligations of the Contracting States are thus twofold,
in that they have an obligation both effectively to investigate alleged human
rights
abuses and to provide effective remedies to the actual victims.
The regular inspection of all places of detention by independent teams is
an effective measure to prevent the occurrence of torture and other forms
of
ill-treatment and should be organized systematically in all countries. To
maximize the effect of such visits, the team members must have
uninhibited and confidential access to all detainees and prisoners and
make a public report on their findings.
179See e.g. I-A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1988, Series C, No. 4 and I-A
Court HR, Villagrán Morales et al.
Case (The “Street Children” Case), judgment of November 19, 1999, Series C, No. 63.
180Eur. Court HR, Case of Çakici, judgment of 8 July 1999, Reports 1999-IV, p. 617, para. 112.
181Ibid., p. 618, para. 113.
Persons deprived of their liberty have a right to an effective remedy for
alleged violations of their human rights, including, in particular, the right
to freedom from torture and other forms of ill-treatment, and must to this
effect have unhindered access to effective complaints procedures which
should result in prompt, serious and objective investigations of the
complaints by the authorities.
Proven torture or other forms of ill-treatment must be adequately
punished and appropriate compensation granted to the victim.
The existence of efficient complaints procedures and the consistent and
vigorous investigation and prosecution of grievances of persons deprived
of
their liberty have a strong dissuasive effect on the incidence of all forms of
torture and cruel, inhuman or degrading treatment and punishment.
and Lawyers in Preventing and
Remedying Unlawful Treatment
of Persons Deprived of their
Liberty
As shown in this chapter, States also have a legal duty to guarantee human
rights to persons deprived of their liberty, and to provide independent, impartial
and
effective complaints procedures which can process alleged violations of their
rights and
provide adequate remedies whenever a person’s rights are found to have been
violated.
Much remains to be done in this field, given that torture and other forms of
ill-treatment of detainees and prisoners, including the unlawful admission of
confessions given under duress, continue to be commonplace in many countries.
The
role of judges, prosecutors and lawyers in ensuring both the true enjoyment of
these
rights and the effective functioning of the complaints system is therefore
indispensable
and multifaceted.
Lawyers will at all times have to protect and defend their clients’ interests,
and must remain vigilant to any signs of torture or other forms of ill-treatment
and
vigorously pursue any avenues open to them to complain against such
treatment. If the
domestic avenues of appeal are not functioning, a remedy of last resort may be
to
pursue the complaints before a competent body at the international level.
As shown throughout this Manual, prosecutors have a special obligation to
take all necessary steps to bring to justice those who are suspected of having
committed
human rights violations such as torture or cruel, inhuman or degrading
treatment. Their
work is a key both to the remedying of past human rights violations and to the
prevention of future violations. The effective work of prosecutors does of course
Lawyers 369
presuppose that they are able to work in an independent and impartial manner,
without
interference by the Executive (cf. Chapter 4). Prosecutors are not allowed to rely
on
evidence obtained by unlawful means involving human rights violations.
Lastly, judges too must be able to decide independently and impartially all
cases of alleged human rights violations. They must at all times refuse to accept
confessions that have been obtained from suspects by means of torture or any
form of
duress. Further, as lawyers and prosecutors, in particular in countries where
torture and
other forms of ill-treatment are known to exist, they must constantly be on the
watch
for any signs of such treatment being administered, and take the necessary legal
steps to
remedy and put an end to such situations.
Where the Government is unwilling or unable to act forcefully to eradicate
torture, judges, prosecutors and lawyers have a professional responsibility to do
their
utmost to provide help to the victims and to prevent future occurrences of such
treatment, as explained in this chapter. To this end, they will also have to keep
themselves continuously informed about the meaning of the international human
rights
standards applied by the international monitoring organs.
Judges, prosecutors and lawyers have a key role to play in the protection
of the human rights of persons deprived of their liberty and must be
allowed to carry out their respective legal duties in true independence and
impartiality.
This chapter has provided an overview of some fundamental human rights
which persons deprived of their liberty continue to enjoy throughout their
confinement, including, in particular, their right to personal integrity and security
and
the consequential right to freedom from torture and other forms of ill-treatment.
While
States have a legal duty under international human rights law to guarantee
these rights
and to provide complaints procedures including effective remedies, such
procedures
and remedies require the full participation of the legal professions in order to
become a
true reality. Where the legal professions are unwilling to assume this role,
individuals
will live in a legal vacuum and be an easy prey to injustice. It is the legal duty of
States
under international human rights law to ensure that judges, prosecutors and
lawyers are
able to carry out these duties in a spirit of true independence and impartiality.
.........Chapter 9
THE USE OF
NON-CUSTODIAL
MEASURES IN THE
ADMINISTRATION
OF JUSTICE...........................
Learning Objectives
_ To familiarize participants with the existing international standards that
promote
the use of non-custodial measures;
_ To explain the aim of non-custodial measures and their use at the various
stages of
the administration of justice;
_ To help participants identify what kinds of non-custodial measures may
be useful
within the context of their professional responsibilities;
_ To acquaint participants with the legal protection linked to the use of
non-custodial
measures;
_ To familiarize participants with the consequences of non-compliance with
the
dispositions of non-custodial measures.
Questions
_ What alternatives to imprisonment exist in the country where you work,
and in
regard to what kinds of criminal offences?
_ Have you, in your role as a judge, prosecutor or lawyer, advised or
resorted to the use
of non-custodial measures?
_ In what situations do you think that it would be particularly useful to do
so?
_ Are there special groups of people that are more likely to benefit from
the use of
non-custodial measures than others?
Lawyers 371
Questions (cont.d)
_ If so, identify these groups and explain why they are more likely to
benefit from
alternatives to imprisonment.
_ What legal safeguards exist in the country where you work with regard to
the use of
non-custodial measures?
_ What are the sanctions for violations of the conditions attached to non-
custodial
measures in the country where you work?
_ United Nations Standard Minimum Rules for Non-custodial Measures
(The Tokyo Rules), 1990
_ United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (The Beijing Rules), 1985
_ Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, 1985
Chapter 9 • The Use of Non-Custodial Measures in the Administration of Justice
1. Introduction
The question of punishment for overstepping legal boundaries is a subject of
continuing interest. Although not the most frequently used penal sanction,
imprisonment of offenders remains a common punishment for crime, which is
authorized by international human rights law to the extent that it is imposed
following a
trial respecting due process of law and does not amount to treatment prohibited
by
human rights standards as being, in particular, clearly disproportionate to the
criminal
offence committed.
While imprisonment is necessary in many cases involving violent offenders, it
does not constitute a panacea with regard either to crime prevention or to the
social
reintegration of offenders. Moreover, in many countries the prison system faces
major
challenges because of overcrowded and outdated facilities, with the result that
prisoners often find themselves in deplorable conditions of detention that can
have
adverse effects on their physical and mental health and impede their educational
and
vocational training, thereby also affecting their chances of future adjustment to
an
ordinary life in the community. The impact of long-term imprisonment on a
person’s
family and work life is also considerable.
The most commonly applied penal sanctions are of a non-custodial nature,
and it is the use of these sanctions that will be dealt with in this chapter. As
scepticism
has grown with regard to the effectiveness of imprisonment, experts have tried
to
develop other useful measures to help offenders while keeping them in the
community,
and one goal of the United Nations Standard Minimum Rules for Non-custodial
Measures ( hereinafter referred to as the Tokyo Rules) is to emphasize the
importance
of such measures.1 The present chapter will primarily be based on the Tokyo
Rules and
the Commentary thereto, although reference will also occasionally be made to
the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (the
Beijing Rules) and the Declaration of Basic Principles of Justice for Victims of
Crime
and Abuse of Power. The Beijing Rules will however be considered in greater
depth in
Chapter 10, on “The Rights of the Child in the Administration of Justice”.
1.1 The purpose of non-custodial measures and
the Tokyo Rules
As intimated above, the purpose of non-custodial measures in general,
and
the Tokyo Rules in particular, is to find effective alternatives to
imprisonment
for offenders and to enable the authorities to adjust penal sanctions to
the needs of
the individual offender in a manner proportionate to the offence
committed. The
advantages of individualizing sentencing in this way are evident, given that it
permits
the offender to remain at liberty, thereby also enabling him or her to continue
work,
studies and family life.2
Lawyers 373
1See UN doc. ST/CSDHA/22, Commentary on the United Nations Standard Minimum Rules for Non-custodial
Measures (the Tokyo Rules)
(hereinafter referred to as Commentary), p. 2.
2Ibid., loc. cit.
As will be seen below, non-custodial measures can, however, be subjected to
conditions and restrictions, the violation of which may in serious cases lead to
imprisonment. Yet in order to safeguard human rights and human dignity,
standards
must be set for the imposition and implementation of any restrictions and
conditions,
and one of the major purposes of the Tokyo Rules is precisely to try to define
these
standards, which must be considered to be the minimum standards aimed at
promoting “efforts to overcome practical difficulties in the application of such
measures”. Consequently, the Rules are not intended to be read as a detailed
model for
a system of non-custodial measures, but simply as setting out “what are
generally
accepted as good principles and current good practice” in this area.3
*****
Following an explanation of some of the basic terms used, this chapter will
consider the general principles of the Tokyo Rules, the legal safeguards, the
options for
non-custodial measures at the various stages of the administration of justice,
and the
implementation of these measures. Lastly, brief reference will be made to the
role of the
legal professions in choosing alternatives to imprisonment.
2. Terminology
2.1 The term “non-custodial measures”
For the purposes of this chapter, the concept of “non-custodial measures”
means any decision made by a competent authority to submit a person
suspected of,
accused of or sentenced for an offence to certain conditions and obligations that
do not
include imprisonment; such decision can be made at any stage of the
administration of
criminal justice (Rule 2.1).4
2.2 The term “offender”
According to Rule 2.1, the Tokyo Rules “shall be applied to all persons subject
to prosecution, trial or the execution of a sentence, at all stages of the
administration of
criminal justice”, and “these persons are referred to as ‘offenders’, irrespective
of
whether they are suspected, accused or sentenced”. Consequently, the term
“offender”
is used in a generic sense, without detracting from the presumption of
innocence.
3Ibid., p. 3.
4Ibid., loc. cit.
2.3 The term “competent authority”

The term “competent authority” means a member of the judiciary, a
prosecutor or a body that is empowered by law to make decisions about the
imposition
or implementation of a non-custodial measure.5
3. General Principles Relating to
Non-custodial Measures
Rules 1 to 4 of the Tokyo Rules lay down in some detail the general principles
guiding recourse to non-custodial measures as alternatives to imprisonment,
and, apart
from the saving clause in Rule 4, these principles describe the fundamental aims,
the
scope, and the legal safeguards of non-custodial measures. This section will
highlight
the most salient aspects of these general principles.
3.1 The fundamental aims of non-custodial measures
According to Rule 1.1, the two fundamental purposes of the Tokyo Rules are
to provide:
_ “a set of basic principles to promote the use of non-custodial measures”; and
_ “minimum safeguards for persons subject to alternatives to imprisonment”.
The Tokyo Rules thus begin by establishing an important balance between
their two fundamental purposes in that they simultaneously encourage recourse
to
non-custodial measures and aim at guaranteeing a just application thereof based
on
respect for the human rights of the offenders; such guarantees are required in
order to
prevent disproportionate recourse to control measures.6
According to the Commentary to the Tokyo Rules, non-custodial measures are
of “considerable potential value for offenders, as well as for the community”, and
can
be an appropriate sanction for a whole range of offences and many types of
offenders,
and in particular for those who are not likely to repeat offences, those convicted
of
minor crimes and those needing medical, psychiatric or social help.7 In these
cases,
imprisonment cannot be considered an appropriate sanction, since it severs
community
ties and hinders reintegration into society and thereby also reduces offenders’
sense of
responsibility and their ability to make their own decisions.8 On the other hand,
non-custodial measures have the unique characteristic of making it possible to
exercise
control over an offender’s behaviour while allowing it to evolve under natural
circumstances .9
Lawyers 375
5Ibid.
6Ibid., p. 5.
7Ibid., loc. cit.
8Ibid., p. 6.
9Ibid., loc. cit.
Consequently, the use of non-custodial measures also diminishes social costs,
given that the administration of criminal justice imposes a very heavy financial
burden
on States. Since not only the individual offender, but also society as a whole,
benefit
from the use of non-custodial measures, this positive potential should encourage
community involvement in their implementation.10
Next, Rule 1.2 describes the further aim of promoting both “greater
community involvement in the management of criminal justice, specifically in the
treatment of offenders, as well as ... a sense of responsibility towards society”
among
offenders. Involvement of the community is essential in reintegrating the
offender into
society and may reduce the risk of stigmatization.11
According to Rule 1.3, the Tokyo Rules “shall be implemented taking into
account the political, economic, social and cultural conditions of each country
and the
aims and objectives of its criminal justice system”. Consequently, the Rules are
not
intended to describe a model system of non-custodial measures, and such a task
would
in any event be precluded by the variety of criminal justice systems throughout
the
world; the intention is rather that this diversity should allow for a fruitful
exchange of
ideas about methods and developments.12
Mindful of the objectives of a criminal justice system and the balance that has
to be struck between the different individual interests, Rule 1.4 provides that
“when
implementing the Rules, Member States shall endeavour to ensure a proper
balance
between the rights of individual offenders, the rights of victims, and the concern
of
society for public safety and crime prevention”. While emphasizing the
promotion
of non-custodial measures and the application of individualized penal
sanctions,
the Tokyo Rules consequently also fully support the general aim of the
criminal
justice system, which is to reduce crime and the need to recognize the
important
role of the victims of crime.13
Lastly, according to Rule 1.5,
“Member States shall develop non-custodial measures within their legal
systems to provide other options, thus reducing the use of imprisonment,
and to rationalize criminal justice policies, taking into account the
observance of human rights, the requirements of social justice and the
rehabilitation needs of the offender.”
According to the Commentary, the reference to “the observance of human
rights, the requirements of social justice and the rehabilitation needs of the
offender”
means, inter alia, that, while the Tokyo Rules aim at guaranteeing more frequent
use of
non-custodial measures, such use should not lead to an increase in the number
of
people subject to penal measures or to an increase in the intensity of such
measures; by
emphasizing the observance of human rights, the Tokyo Rules seek to avoid the
abuse
of discretion in the implementation of non-custodial measures.14
10Ibid.
11Ibid.
12Ibid.
13Ibid.
14Ibid., p. 7.
The primary purpose of non-custodial alternatives to imprisonment is to
enable penal sanctions to be individualized to the needs of the offender,
thereby making the sanctions more effective. Non-custodial measures are
also less expensive for society in general than deprivation of liberty.
Individualized penal sanctions involving non-custodial measures must be
considered in the light of the general aim of the criminal justice system,
which is to reduce crime, and the need to recognize the needs and
interests
of the victims of crime.
The use of non-custodial measures must respect internationally
recognized
human rights.
3.2 The scope of non-custodial measures
3.2.1 The general scope of non-custodial measures
As noted in subsection 2.2 above, the Tokyo Rules are applicable to “all
persons subject to prosecution, trial or the execution of a sentence” (Rule 2.1).
They
can thus apply either to measures imposed on a convicted person as a penalty
for an
offence, or to suspects and defendants before their trial. Lastly, they cover
measures
which allow some part of a prison sentence to be served in the community and
measures that reduce the length of imprisonment and substitute for it some form
of
supervision.15 The use of non-custodial measures instead of pre-trial detention is
particularly to be encouraged, since pre-trial custody should be an exceptional
measure
in view of the suspect’s right to be presumed innocent.16
3.2.2 The prohibition of discrimination
According to Rule 2.2, the Tokyo Rules “shall be applied without any
discrimination on the grounds of race, colour, sex, age, language, religion,
political or
other opinion, national or social origin, property, birth or other status”. As shown
in
this Manual, the prohibition on discrimination conditions the application of all
aspects
of international human rights law. It is therefore fully logical that non-custodial
measures too must be resorted to in a non-discriminatory manner.
However, not all differences in treatment can be considered to be
discriminatory, and, as held by the Human Rights Committee under article 26 of
the
International Covenant on Civil and Political Rights, “differentiation based on
reasonable and objective criteria does not amount to prohibited discrimination”
within
the meaning of that article.17
Lawyers 377
15Ibid., p. 8.
16Ibid., loc. cit. and cf. Chapter 5 on “Human Rights and Arrest, Pre-trial and Administrative Detention”.
17See e.g. Communication No. 172/1984, S. W. M. Broeks v. the Netherlands (Views adopted on 9 April
1987), GAOR, A/42/40,
p. 150, para. 13.
Having regard to the fact that one of the great advantages of non-custodial
measures is the possibility to adjust them to the needs of the individual offender,
the
element of discretion involved in the decision-making may increase the risk of
discrimination against a person or group. Implementation of the measures may
of
course also reflect any discrimination currently being practised in that
community.18
For example, it could prove more difficult to find training opportunities or work
placements for members of ethnic minorities or even for women undergoing
non-custodial measures.19 In spite of these problems, equality of treatment in the
application of non-custodial measures must be ensured.
On the other hand, and as pointed out above, the prohibition on
discrimination does not mean that all differences in treatment are prohibited,
but only
those that have no reasonable and objective justification. It may in fact
be quite
reasonable and justified objectively to treat persons differently in view of their
particular background and personal needs and problems.20
It may also be necessary to consider the religious beliefs and moral precepts of
the groups to which the offender belongs.21 Furthermore, there are certain
groups of
people, such as children, women, elderly people and people with mental health
problems, on whom imprisonment may have a particularly damaging effect, and
it may
therefore be not only desirable but even necessary to make certain distinctions
between
offenders in order to meet their special needs.22
3.2.3 Flexibility in application
While emphasizing the importance of “consistent sentencing”, Rule 2.3
promotes considerable flexibility in the development and use of non-custodial
measures based on the following four criteria:
_ “the nature and gravity of the offence”;
_ “the personality and background of the offender”;
_ “the protection of society”; and
_ the avoidance of “unnecessary use of imprisonment”.
The non-custodial measures can be much more flexible than pre-trial
detention, for instance, and this is the potential recognized by Rule 2.3.23
However,
consistency is clearly in the interests of fairness and justice and sentencing
guidelines
that establish the equivalencies among the various types of non-custodial
measures
would assist those imposing such measures.24
18Commentary, pp. 8-9.
19Ibid., p. 9.
20Ibid., loc. cit.
21Ibid.
22Ibid.
23Ibid.
24Ibid.
In line with this flexible approach, Rule 2.4 provides that “the development of
new non-custodial measures should be encouraged and closely monitored and
their use
systematically evaluated”. The need for regular monitoring and systematic
evaluation is
particularly important given the flexibility inherent in non-custodial measures
and in
order to ascertain whether the objectives laid down in Rule 2.3 are met.25 From
the
viewpoint of a rational criminal justice policy, new non-custodial measures
should be
added only if accompanied by systematic evaluation enabling the authorities to
measure
their operational effectiveness.26
According to Rule 2.5, furthermore, “consideration shall be given to dealing
with offenders in the community avoiding as far as possible resort to formal
proceedings or trial by a court, in accordance with legal safeguards and the rule
of law.”
This rule is consistent with Rule 2.6 of the Tokyo Rules which provides that
“non-custodial measures should be used in accordance with the principle of
minimum
intervention”.27 Whenever feasible, a trial should be avoided, both because it
spares the
suspect and his or her family from the negative consequences of formal
sanctioning and
because it eases the economic burden on society.28
The flexibility inherent in non-custodial measures implies that they can
be used at any stage of the proceedings.
Non-custodial measures must be applied fairly and objectively; they must
not involve discrimination. Differences in treatment are lawful only if they
have a reasonable and objective justification.
Authorities must ensure consistent sentencing when resorting to
non-custodial measures.
Non-custodial measures should be used in accordance with the principle
of minimum intervention; all excessive measures must be avoided.
When resorting to non-custodial measures, the competent authorities
must
consider:
_ the nature and gravity of the offence;
_ the personality and background of the offender;
_ the protection of society (the prevention of crime); and
_ the avoidance of unnecessary use of imprisonment.
Lawyers 379
25Ibid.
26Ibid., pp. 9-10.
27Ibid., p. 10.
28Ibid., loc. cit.
3.3 Legal safeguards

3.3.1 The principle of legality
The importance of respecting the human rights of persons to whom
non-custodial measures may be applied is a recurring theme in the Tokyo Rules,
and the
reason why legal safeguards are considered to be essential. Rule 3.1 thus
provides that
“the introduction, definition and application of non-custodial measures shall be
prescribed by law”. The requirement that non-custodial measures must be
defined and
applied only as “prescribed by law” is consistent with the requirement in
international
human rights law that “restrictions on the exercise of human rights must be laid
down
in pre-established legal standards of general application”;29 in other words, the
principle
of legality must be respected whenever the State authorities take measures
interfering
with the enjoyment of the rights and freedoms of an individual, whether within or
outside the framework of criminal proceedings.
However, with regard to the application of non-custodial measures, it is not
sufficient that the law defines the measures to be applied and the conditions for
their
application; it must also specify which authorities are responsible for their
implementation and, where authority has been delegated to third parties, such
delegation should be founded in law.30
3.3.2 The criteria for resorting to non-custodial measures and
the need for discretion
A second important legal safeguard in the application of non-custodial
measures is that, as stipulated in Rule 3.2, the selection of a non-custodial
measure shall
be based on an assessment of established criteria in respect of:
_ the purposes of sentencing; and
_ the rights of victims.
The Tokyo Rules thus provide a clear framework for the selection of
non-custodial measures, which considers the interests of the offender, as well as
those
both of society in general and of the victim or victims. These criteria constitute
another
recurring theme in the Tokyo Rules and are also reflected in Rules 1.4 and 2.3.
In spite of these basic criteria, the nature of the imposition of non-custodial
measures requires that the competent judicial or other independent authorities
enjoy a
considerable degree of discretion, which, however, according to Rule 3.3, “shall
be
exercised at all stages of the proceedings by ensuring full accountability and
only in
accordance with the rule of law”.
29Anna-Lena Svensson-McCarthy, The International Law of Human Rights and States of Exception - With
Special Reference to the Travaux
Préparatoires and Case-Law of the International Monitoring Organs (The Hague/Boston/London, Martinus
Nijhoff Publishers), 1998,
p. 721.
30Commentary, p. 11.
This rule applies to all decisions relating to non-custodial measures, from the
original decision imposing the measure to any subsequent decision about
implementation.31 The principle of legality is to be respected throughout
the
proceedings relating to the non-custodial measures.
3.3.3 The requirement of consent
The requirement of consent of the offender to the imposition of
non-custodial measures is an important precondition for its success, and,
according to
Rule 3.4, such consent is obligatory with regard to non-custodial measures
“applied
before or instead of formal proceedings or trial”. Consequently, the requirement
of
consent is a particular safeguard relating to persons accused but not yet tried or
convicted.32 The Commentary explains that it is essential that the suspect or
accused
person consents to the non-custodial measure because, where it is imposed
instead of
formal proceedings, consent to it can lead to the renunciation of the legal
safeguards
that would exist if the case were proceeded with.33
Furthermore, the accused should be informed about the potential
consequences of refusing to consent to non-custodial measures, and any indirect
pressure on the accused to consent to the measures should be avoided.34 Lastly,
a
refusal to consent to the imposition of a non-custodial measure should not
adversely
affect the accused’s position in any way.35
The requirement of consent to diversionary measures is also contained in Rule
11.3 of the United Nations Standard Minimum Rules for the Administration of
Juvenile
Justice (the Beijing Rules). In that context, it is either “the juvenile, or her or his
parents
or guardian” who must give consent to the recommended diversionary measure
(see
further Chapter 10, subsection 10.3).
3.3.4 The right to review
Rule 3.5 stipulates that “decisions on the imposition of non-custodial
measures shall be subject to review by a judicial or other competent
independent
authority, upon application by the offender”. This right of appeal is an additional
safeguard against arbitrary decisions. In order for this safeguard to be truly
effective,
the offender must be informed of this right. In this respect, the Commentary
advises that,
at the time of the imposition of the measure, the offender and, where
appropriate, his
or her legal representative be given a document explaining the details of the
review
procedure, including information on the competent body and how to contact it.36
The
offender should have the right to appear in person or to have access to some
other way
of being heard by the review body. The review itself should be speedy.37
Lawyers 381
31Ibid., p. 12.
32Ibid., loc. cit.
33Ibid.
34Ibid.
35Ibid.
36Ibid.
37Ibid.
The right to appeal does not only concern the initial non-custodial measure:
Rule 3.6 also guarantees the offender the right “to make a request or complaint
to a
judicial or other competent independent authority on matters affecting his or her
individual rights in the implementation of non-custodial measures”
(emphasis
added). Even after the offender has accepted the imposition of a non-custodial
measure, he or she may need to seek recourse to complain about unfair or
arbitrary
implementation that violates his or her human rights and fundamental
freedoms.38
The body hearing the complaints should be independent of the authority
implementing the measure, and should be a court, a review board or an
ombudsman
empowered to investigate. Here too, it is essential that the offender and his or
her legal
representative be informed in clear and simple terms of the existence of this
entitlement
and how it can be exercised.39 Investigation should be speedy and the results
communicated to the offender in terms that he or she can understand.40
Lastly, Rule 3.7 provides that
“Appropriate machinery shall be provided for the recourse and, if possible,
redress of any grievance related to non-compliance with internationally
recognized human rights.”
This rule obliges States to set up an adequate complaints procedure to ensure
that Rules 3.5 and 3.6 are duly implemented and that the legal machinery
provides for
the possibility of redress for any violation of international human rights
obligations that
may have been caused by the imposition and/or implementation of non-custodial
measures. This provision is simply an expression of States’ duty under general
international human rights law to remedy any violation of individual rights and
freedoms for which they have been found responsible.
The right of appeal against diversionary measures is also guaranteed by Rule
11.3 of the Beijing Rules with regard to juvenile offenders (see Chapter 10,
subsection
10.3).
3.3.5 Restrictions on the imposition of non-custodial measures
First, Rule 3.8 prohibits non-custodial measures involving “medical or
psychological experimentation on, or undue risk of physical or mental injury to,
the
offender”. In any event, non-custodial measures may not, of course, violate the
legally
binding rules existing in international human rights law, such as the right to
freedom
from inhuman or degrading treatment or punishment (cf. inter alia art. 7 of the
International Covenant on Civil and Political Rights and the saving clause
contained in
Rule 4.1 of the Tokyo Rules).
It is important to stress that the search for new non-custodial measures, which
is encouraged in Rule 2.4 of the Tokyo Rules, must be seen in the light of Rule
3.8, since
it is essential that offenders not be used as guinea-pigs.41 The implementation
and
38Ibid.
39Ibid.
40Ibid., pp. 12-13.
41Ibid., p. 13.
development of non-custodial measures must, in other words, always respect the
rights
and freedoms of the offenders, a requirement underlined by Rule 3.9, according
to
which “the dignity of the offender subject to non-custodial measures shall be
protected
at all times.”
Second, “in the implementation of non-custodial measures, the offender’s
rights shall not be restricted further than was authorized by the competent
authority
that rendered the original decision” (Rule 3.10). This is a rule based on the
principle of
legality: any interference with a person’s rights must be based on law, and no
further
restrictions can be imposed without a decision taken by a duly authorized
authority
acting in accordance with the law.
Third, “in the application of non-custodial measures, the offender’s right to
privacy shall be respected, as shall be the right to privacy of the offender’s
family” (Rule
3.11). In this respect the Commentary advises against the use of methods of
surveillance
that treat offenders solely as objects of control; further, surveillance techniques
should
not be used without the offenders’ knowledge, and persons other than properly
accredited volunteers should not be employed for the surveillance of offenders.42
Such
measures could of course jeopardize the dignity of the offender, which must be
guaranteed at all times.
Lastly, the right to dignity and the right to respect for the offender’s privacy
are also protected by Rule 3.12, according to which “the offender’s personal
records
shall be kept strictly confidential and closed to third parties. Access to such
records
shall be limited to persons directly concerned with the disposition of the
offender’s case
or to other duly authorized persons.” Offenders and their families are entitled to
know
that personal information about them will not be made public and will not be
used to
hinder their chances of social reintegration. It is therefore also important to keep
the
records in a safe place, and consideration should be given to the desirability of
destroying them after a reasonable period.43
The principle of legality must be fully respected in employing
non-custodial measures, i.e., recourse to and implementation of such
measures must be in accordance with the law.
Non-custodial measures must be based on the following criteria:
_ the purposes of sentencing; and
_ the right of victims.
The use of non-custodial measures requires the consent of the offender
when applied before or instead of formal proceedings or trial.
The offender has a right to request a review by a judicial or other
competent
and independent authority of the non-custodial measures imposed.
Lawyers 383
42Ibid., loc. cit.
43Ibid., p. 14.
The dignity of an offender subjected to non-custodial measures must be
respected at all times, as must his or her other rights and freedoms.
The non-custodial measure must not restrict the offender’s rights further
than was authorized by the original decision.
The right to privacy of the offender and his or her family must be
guaranteed throughout the implementation of the non-custodial
measures.
4. Non-custodial Options at the
Different Stages of the Judicial
Process
As explained above, non-custodial measures can be resorted to at any stage of
the judicial proceedings, whether at the pre-trial, trial and sentencing or post-
sentencing
stages. They therefore constitute important and flexible tools in choosing the
sanctions
most likely to have a beneficial impact on the offender in the form of his or her
reintegration into the community as a law-abiding citizen.
4.1 Non-custodial measures at the pre-trial stage
The possibility of resorting to non-custodial measures at the pre-trial stage is
regulated in the following terms by Rule 5.1 of the Tokyo Rules:
“Where appropriate and compatible with the legal system, the police, the
prosecution service or other agencies dealing with criminal cases should be
empowered to discharge the offender if they consider that it is not
necessary to proceed with the case for the protection of society, crime
prevention or the promotion of respect for the law and the rights of
victims. For the purpose of deciding upon the appropriateness of
discharge or determination of proceedings, a set of established criteria shall
be developed within each legal system. For minor cases the prosecutor may
impose suitable non-custodial measures, as appropriate.”
Discharging the offender even before formal action has been taken is the
earliest possible non-custodial measure in the pre-trial stage, but, as is seen in
Rule 5.1,
it is conditioned by
_ the protection of society;
_ crime prevention;
_ the promotion of respect for the law; and
Consequently, the individual interest the offender may have in agreeing to the
conditions to be imposed must in all cases be weighed against these four other
interests
which are of a general nature, going to the heart of society’s values as reflected
in the
criminal law of the State concerned. Whenever the four general interests
outweigh the
offender’s personal interest in having the proceedings dismissed, he or she will
have to
face the relevant proceedings.
Whether or not formally recognized, discharge is frequently used in many
legal systems as an effective means of dealing with certain categories of offence
and
types of offender in accordance with the principle of minimum intervention
(cf.
Rule 2.6).44 It is considered a particularly appropriate method of dealing with
juveniles,
since keeping them out of the formal criminal justice process is believed to
reduce the
chances of them becoming more deeply involved in crime.45
However, the discretionary power of the authorities to dismiss proceedings
should be restricted by the aforementioned specific criteria. Such criteria are
necessary
in order to guide the authorities in their decision-making and enable them to
take
consistent decisions according to Rule 2.3, thereby also promoting legal security
in the
State concerned.
The use of non-custodial measures at the pre-trial stage should also be seen in
the light of the basic rule reflected in Rule 6.1, according to which “pre-trial
detention
shall be used as a means of last resort in criminal proceedings, with due regard
for the
investigation of the alleged offence and for the protection of society and the
victim”.
Rule 6.2 promotes the earliest possible use of alternatives to pre-trial detention.
As far as the various safeguards relating to pre-trial detention are concerned,
general international human rights law provides a more detailed regulation than
Rules
6.2 and 6.3 of the Tokyo Rules, and it is therefore sufficient in this respect to
refer to
Chapter 5 of this Manual, which deals in some depth with “Human Rights and
Arrest,
Pre-trial and Administrative Detention”.
4.2 Non-custodial measures at the trial and
sentencing stage
As to the sentencing stage, the Tokyo Rules provide for a range of
non-custodial measures which the judicial authorities “may” use, although in
doing so,
they “should take into consideration ... the rehabilitative needs of the offender,
the
protection of society and the interests of the victim, who should be consulted
whenever
appropriate” (Rules 8.1 and 8.2). According to Rule 8.2 (a) to (m), the sentencing
authorities may dispose of cases in the following ways:
_ verbal sanctions, such as admonition, reprimand and warning;
_ conditional discharge;
_ status penalties;
_ economic sanctions and monetary penalties, such as fines and day-fines;
Lawyers 385
44Ibid., p. 15.
45Ibid., loc. cit.
_ confiscation or an expropriation order;
_ restitution to the victim or a compensation order;
_ suspended or deferred sentence;
_ probation and judicial supervision;
_ a community service order;
_ referral to an attendance centre;
_ house arrest;
_ any other mode of non-institutional treatment; or,
_ some combination of these measures.
Just as the offender’s personal needs and interests have to be weighed against
society’s interests at the pre-trial stage, so the offender’s “rehabilitative needs”
at the
sentencing stage must be balanced against the need to protect society and “the
interests
of the victim”. The participation of the victim in the proceedings is also
encouraged by
Principle 6(b) of the Declaration of Basic Principles of Justice for Victims of Crime
and
Abuse of Power, which was adopted by the United Nations General Assembly in
1985.
According to this principle, “the responsiveness of judicial and administrative
processes to the needs of victims should be facilitated by ... allowing the views
and
concerns of victims to be presented and considered at appropriate stages of the
proceedings where their personal interests are affected, without prejudice to the
accused and consistent with the relevant national criminal justice system.”
Indeed, the
participation of the victim may raise the possibility of his or her obtaining
restitution or
compensation, a measure that may constitute a penalty in its own right and
could make
the imposition of further sanctions unnecessary.46
As indicated above, the list of non-custodial measures in Rule 8.2, while not
exhaustive, contains a wide range of non-custodial measures to suit different
circumstances and achieve different objectives.47 For example, verbal sanctions
such as
admonition or reprimand may be appropriate for young offenders, enabling them
to
realize that they have done wrong without being stigmatized as criminals.48
Economic penalties such as fines and day-fines are widely used, but offenders
with little money may have difficulty in paying them. Day-fines can solve this
problem
by linking the amount to be paid to the offender’s level of disposable income.49
Community service is a form of restitution that benefits the community rather
than the individual victim, and has the advantage of making demands on the
offender
and, at the same time, producing a useful outcome in the form of the work done
for the
community.50
46Ibid., p. 18.
47Ibid., loc. cit.
48Ibid.
49Ibid.
50Ibid.
Various supervision measures can also be imposed on the offender, and can
of course be adapted to the needs of individual offenders, helping them to
reintegrate
into society.51
An example of other non-custodial measures that might be of interest is the
requirement for offenders sentenced for drunken driving to undergo traffic
education.
Other possibilities may involve upgrading sanctions that were originally ancillary
to a
principal sentence, such as revocation of a driving licence, or confiscation of
unlawful
gains. Lastly, combinations of custodial and non-custodial measures may also be
considered.52
4.3 Non-custodial measures at the
post-sentencing stage
The use of non-custodial measures is also encouraged at the post-sentencing
stage, and in this respect Rule 9.1 of the Tokyo Rules provides that “the
competent
authority shall have at its disposal a wide range of post-sentencing alternatives
in order
to avoid institutionalization and to assist offenders in their early reintegration
into
society.” This rule is based on the principle that reducing the length of
imprisonment
can reduce the risk of offenders becoming institutionalized and thus unable to
cope
with society once they have been released. Consequently, it can be of advantage
to grant
offenders early release, while subjecting them, if necessary, to supervision.53
Rule 9.4
also promotes the idea of releasing offenders from an institution to a non-
custodial
programme at the earliest possible stage.
Rule 9.2 enumerates the following post-sentencing dispositions:
_ furlough and half-way houses;
_ work or education release;
_ various forms of parole;
_ remission;
_ pardon.
Some of these measures are substitutes for imprisonment. The offender is still
under the authority of the prison administration but spends his or her days
outside the
prison working or undergoing training. The advantage of such an arrangement is
that
he or she can earn money that can be used to help meet family commitments, or
saved
to assist with reintegration upon release.54 In a half-way house, the offender is
still
technically under the supervision of the prison authorities but lives in “semi-
freedom”,
readjusting to life in the community.55
Lawyers 387
51Ibid., p. 19.
52Ibid., loc. cit.
53Ibid., p. 20.
54Ibid., loc. cit.
55Ibid.
The right to request review of decisions on post-sentencing disposition is
guaranteed by Rule 9.3 of the Tokyo Rules except in the case of pardon;
decisions on
other non-custodial measures shall however “be subject to review by a judicial or
other
competent independent authority, upon application of the offender”. This rule is
in full
harmony with the general principles on judicial review both of decisions
concerning
non-custodial measures and of their implementation as laid down in Rules 3.5
and 3.6,
which were dealt with above in subsection 3.3.4. It is recalled in this respect that
in
order to enable the offender to exercise the right to review effectively, he or she
must be
given clear information on the possibilities for review and on how to apply for
it.56
The Commentary stresses that, as a decision on early release or the granting of
parole requires an implicit review of the previous sentencing decision, a formal
decision-making procedure to be followed by the competent body should be
developed. Well-defined criteria for the granting of early release or parole should
be
drawn up, and clearly explained to the prisoners. Such criteria also reduce
abuses of the
discretionary power of the competent authorities to a minimum, as well as
enabling
prisoners to work towards release knowing what criteria they will need to
satisfy.57
Non-custodial measures are flexible tools that can be used at the pre-trial
stage, at the trial and sentencing stage or at the post-sentencing stage.
They should always be considered in the light of the principle of minimum
intervention.
At the pre-trial stage, the interest of the offender in seeing the
proceedings dismissed has to be weighed against:
_ the protection of society;
_ crime prevention/the promotion of respect for the law; and
Dismissal of proceedings is a common non-custodial measure at this
stage.
At the trial and sentencing stages, recourse to non-custodial
measures should consider:
_ the rehabilitative needs of the offender;
_ the protection of society; and
_ the interests of the victims.
The victims should be consulted whenever appropriate.
At the post-sentencing stage, the authorities should have a wide range of
non-custodial measures at their disposal in order to ensure the prisoner’s
earliest possible release to assist his or her reintegration into society.
56Ibid., p. 21.
57Ibid., loc. cit.
5. Implementation of
Non-custodial Measures
The remaining Tokyo Rules concern implementation of non-custodial
measures, staff, volunteers and other community resources as well as research,
planning, policy formulation and evaluation. However, since some of these
provisions
may be considered to be chiefly aimed at those involved in the implementation
of the
non-custodial measures rather than at the legal professions as such, only a few
of the
rules regarding implementation will be considered here. A more detailed
knowledge
can be acquired by reading the Tokyo Rules in their entirety in conjunction with
the
Commentary. The present section will therefore confine itself to dealing with the
rules
relating to the following issues, which are intrinsically linked to the
implementation of
non-custodial measures, namely: supervision, duration, conditions, the treatment
process, and discipline and breach of conditions.
5.1 The supervision of non-custodial measures
As emphasized in Rule 10.1, “the purpose of supervision is to reduce
reoffending and to assist the offender’s integration into society in a way which
minimizes the likelihood of a return to crime.” In a sense, this is simply a
restatement of
the basic principle on which the concept of non-custodial measures in general is
based,
and which the authorities responsible for implementation should always bear in
mind,
namely, that their purpose is to help offenders to avoid a relapse into crime by
strengthening their sense of responsibility, thereby also assisting their
reintegration into
society.
Non-custodial measures such as verbal sanctions and fines need no
supervision at all, but others, such as transfer to attendance centres, probation,
parole
and community service, require supervision, since they are designed to provide
the
offenders with guidance and assistance towards their social rehabilitation.58
Non-custodial measures of this kind are based on supervision, the principal
element of
which is the personal relationship between supervisor and offender. It is obvious
that
such measures cannot be implemented without the consent of the offender and
that
they depend for their success on his or her cooperation and participation.59 The
supervision can be described as having a twofold objective in that, on the one
hand, it
focuses on the responsibilities of offenders to the community, while, on the other
hand,
helping them to overcome the difficulties they may face in adjusting to life in the
community.60
It follows that supervision is a highly skilled task, as is reflected in Rule 10.2,
which provides that “if a non-custodial measure entails supervision, the latter
shall be
carried out by a competent authority under the specific conditions prescribed by
law”.
According to the Commentary, some of the responsibilities involved in
supervision can
Lawyers 389
58Ibid., p. 22.
59Ibid., loc. cit.
60Ibid.
be delegated to community groups or volunteers, although when this is done it
must be
made clear that all statutory power rests with the competent authorities.61 On
the other
hand, when supervisory functions are delegated to agencies working for
commercial
profit, many questions arise which need careful consideration in the light of Rule
10.2.62
Rule 10.3 provides that
“Within the framework of a given non-custodial measure, the most
suitable type of supervision and treatment should be determined for each
individual case aimed at assisting the offender to work on his or her
offending. Supervision and treatment should be periodically reviewed and
adjusted as necessary.”
This rule must, however, be interpreted in the light of Rule 2.6, according to
which “non-custodial measures should be used in accordance with the principle
of
minimum intervention”. Consequently, the measure agreed on must not be
stricter
than is necessary in order to help the offender reintegrate into the community as
a
law-abiding citizen. Excessive intervention may undermine the offender’s
self-confidence and result in him or her becoming overly dependent on the
supervising
officers.63
It is important that the authorities show that they are convinced of the
rightness of the decisions that they are taking on non-custodial measures, and
they must
also ensure that offenders are treated equally, so as to avoid unfair distinctions
being
made (cf. Rule 2.2 and subsection 3.2.2).
The offender must be involved to the greatest possible extent in the
formulation of the treatment plan, the assessment of the intensity of the
supervision
and treatment, and its possible adjustment in the light of the progress made by
the
offender.64 This does not mean that the supervision can be designed entirely in
accordance with the offender’s own wishes: the decision-making authorities have
also
to take into account the nature and gravity of the original offence, the
personality and
background of the offender, the purpose of the sentencing and the rights of
victims (cf.
Rule 3.2).
As to the help which offenders may need in order to successfully reintegrate
into society, Rule 10.4 mentions “psychological, social and material assistance
and ...
opportunities to strengthen links with the community”. Offenders may have a
wide
range of needs and problems. Some may need long-term psychological
counselling
while others may only need help in finding a place to live or a job. Again, on the
basis of
Rule 10.4 the assistance given must respect the principle of minimum
intervention and
should only comprise what is absolutely necessary to help the offender.65
61Ibid., pp. 22-23.
62Ibid., loc. cit.
63Ibid.
64Ibid.
65Ibid.
5.2 The duration of non-custodial measures

As to the duration of the non-custodial measure, it “shall not exceed the
period established by the competent authority in accordance with the law” (Rule
11.1),
but “provision may be made for early termination of the measure if the offender
has
responded favourably to it” (Rule 11.2).
Rule 11.1 thus reinforces the principle of strict legality in the determination of
the non-custodial measures, which must be fixed by a “competent authority”
taking a
decision “in accordance with the law”. It follows that the implementing
authorities
have no power to extend the duration of the measure.66 However, an ongoing
measure
may be extended by the competent authority if doing so can be shown to be
beneficial
to the offender, for instance, to enable him or her to continue a course of
treatment; any
such extension must, however, be entirely voluntary, a point that must be made
completely clear to the offender.67
As provided by Rule 11.2, a measure can also be terminated before the
expiry of the duration originally foreseen, and this again reflects the
principle that
non-custodial measures should be limited to the shortest possible time.68 This
should
encourage offenders in their efforts to reintegrate into society, and the relevant
procedures should be clear and well understood by them.69
5.3 The conditions attached to non-custodial
measures
According to Rule 12.1, whenever the competent authority has to determine
the conditions to be observed by the offender, “it should take into account both
the
needs of society and the needs and rights of the offender and the victim”. Here
again, it
is a question of striking a fair balance between various legitimate interests: if the
offender’s interests were given undue weight, the needs of society and the
victim or
victims might not be satisfied, and vice versa. It is thus for the individual judge
or other
competent decision-making authority to balance these interests in an equitable
and
objective manner. It follows from the principle of legality that the implementing
authority should never impose conditions going beyond the requirements
already fixed
by the judicial authority.70
The conditions to be observed by the offender shall, in the words of Rule 12.2,
“be practical, precise and as few as possible”, the latter stipulation being yet
another
expression of the principle of minimum intervention as laid down in Rule 2.6.
Furthermore, the conditions “shall be aimed at reducing the likelihood of an
offender
relapsing into criminal behaviour and at increasing the offender’s chances of
social
integration, taking into account the needs of the victim”. In other words, it is of
Lawyers 391
66Ibid.
67Ibid., p. 24.
68Ibid., loc. cit.
69Ibid.
70Ibid.
fundamental importance that the conditions are both realistic and precise.71
Unless it
is clear from the outset that the conditions are achievable by the offender, they
may
impede, rather than facilitating, his or her progress towards social integration. As
to the
requirement of precision, it is important both in order to help the offender to
understand the conditions clearly, and also to avoid causing difficulties in the
relationship between the offender and the supervisor.72
The conditions envisaged in the Tokyo Rules may include those reinforcing
the offender’s responsibility to society and his or her family, keeping a job,
pursuing an
education, living at a specific address, refraining from involvement in criminal
activities,
and avoiding specific places.73 If, for instance, the condition is the performance
of
community service, the work assigned to the offender should be socially useful,
thereby
enhancing his or her chances of social reintegration.74
As provided by Rule 12.3, “at the beginning of the application of a
non-custodial measure, the offender shall receive an explanation, orally and in
writing,
of the conditions governing the application of the measure, including the
offender’s
obligations and rights.” In order for the measure to be successful, it is of course
essential that the offender is aware of what is expected from him or her. To have
the
conditions clearly defined is also important for the implementing authority, in
that it
establishes the criteria for assessing whether or not the obligations and
conditions have
been complied with.75
Lastly, Rule 12.4 allows for the modification of the conditions “by the
competent authority ... in accordance with the progress made by the offender”. If
the
offender has made progress towards social integration, the conditions may
bemade less
stringent, while the opposite is possible if the offender does not respond
favourably.
This flexibility enables the authorities to avoid revoking the non-custodial
measure in
case of difficulties, a measure that might result in the offender’s imprisonment.76
5.4 The treatment process
Rule 13.1 of the Tokyo Rules provides the following examples of various
schemes which, “in appropriate cases ... should be developed to meet the needs
of
offenders more effectively”:
_ case-work;
_ group therapy;
_ residential programmes; and
_ the specialized treatment of various categories of offenders.
71Ibid.
72Ibid.
73Ibid., p. 25.
74Ibid., loc. cit.
75Ibid.
76Ibid.
The purpose of this provision is to find the most effective help for offenders
with particular problems, and to call for the development of new programmes to
try to
deal with particularly difficult categories of offenders, such as drug-dependent
persons
and sex offenders.77
A rather obvious principle is contained in Rule 13.2, according to which
“treatment should be conducted by professionals who have suitable training and
practical experience.” Yet, according to the Commentary, this rule should not be
understood as a prohibition of the use of non-professionals in programmes of
assistance, where the essential strength of such programmes lies in persons with
practical experience rather than professional qualifications.78
“When it is decided that treatment is necessary, efforts should be made to
understand the offender’s background, personality, aptitude, intelligence, values
and,
especially, the circumstances leading to the commission of the offence” (Rule
13.3).
Clearly, unless such an assessment of the offender and the offence is made, it
will be
difficult to choose an individualized and suitable treatment programme.
In line with the aim of promoting greater community involvement in the
management of criminal justice, specifically in the treatment of offenders (Rule
1.2), the
Tokyo Rules also authorize the competent authority to “involve the community
and
social support systems in the application of non-custodial measures” (Rule 13.4).
This
is a recognition that the community, in the form of the family, neighbourhoods,
schools, the workplace and social or religious organizations, for instance, can
contribute greatly to the successful social reintegration of offenders.79
5.5 Discipline and breach of conditions
Even though the imposition of some non-custodial measures is dependent on
the consent of the offender, most such measures are still sanctions that imply
some
restriction of liberty, and offenders may therefore fail to observe the conditions
imposed on them.80 Such “a breach of the conditions to be observed by the
offender
may result in a modification or revocation of the non-custodial measure” (Rule
14.1).
However, according to the Commentary, not all breaches need lead to
modification or
revocation, and the supervisor or competent authority can deal with minor
transgressions by less formal means.81
Considering that modification or revocation of a non-custodial measure can
have serious consequences for the offender, it is for the competent authority to
take a
decision in the matter, but it shall do so only “after a careful examination of the
facts
adduced by both the supervising officer and the offender” (Rule 14.2). This
means that
the offender should have the right to see the documents on which the request
for
modification or revocation is based, to make representations and to be heard.82
In
Lawyers 393
77Ibid., p. 26.
78Ibid., loc. cit.
79Ibid.
80Ibid., p. 27.
81Ibid., loc. cit.
82Ibid., p. 28.
examining the request, the competent authority should also consider the extent
to
which the offender has already complied with the non-custodial measures, such
as, for
instance, the fact that he or she may have already satisfactorily carried out a
substantial
proportion of the number of hours of community work imposed.83
The principle that imprisonment should also be a penalty of last resort in cases
of violation of the conditions imposed in connection with a non-custodial
measure is
clear from the terms of Rule 14.3, according to which “the failure of a non-
custodial
measure should not automatically lead to the imposition of a custodial measure”.
Furthermore, “in the event of a modification or revocation of the non-custodial
measure, the competent authority shall attempt to establish a suitable
alternative
non-custodial measure”, and it is only if such other suitable alternative has not
been
found that a sentence of imprisonment may be imposed (Rule 14.4). Indeed, to
impose
imprisonment for a breach of the non-custodial measure may even be
disproportionate
to the original offence,84 and the competent authorities will therefore need to
proceed
with considerable care in deciding on the consequences in the event of failure to
comply with the relevant conditions.
Care must also be taken not to let the offender take the consequences of
breaches of conditions for which he or she cannot be blamed; there could for
instance
be many reasons why an offender is unable to pay a fine, some of which may be
beyond
his or her control, and this aspect must be given due consideration when the
competent
authority examines the question of modification or revocation of non-custodial
measures.85
Rule 14.5 provides that “the power to arrest and detain the offender under
supervision in cases where there is a breach of the conditions shall be prescribed
by
law”. Strict respect for the principle of legality is here again to be ensured,
including all
basic judicial guarantees which the offender has a right to enjoy when deprived
of his or
her liberty.86 The Commentary points out the importance of laying down a
maximum
time for detention prior to investigation and decision by the competent authority;
the
period should be short and the decision made as soon as possible.87
Lastly, consistent with the general legal safeguard in Rule 3.6, Rule 14.6
secures the offender “the right to appeal to a judicial or other competent
independent
authority” upon modification or revocation of the non-custodial measure.
Supervision of non-custodial measures is aimed at reducing reoffending
and helping the offender’s social reintegration. The need for supervision
depends on the nature of the non-custodial measure concerned.
The supervision shall be carried out by a competent authority in
accordance with conditions prescribed by law.
83Ibid., loc. cit.
84Ibid.
85Ibid.
86Ibid.
87Ibid.
The supervision must be adapted to the needs of the offender and
depends
for its success on his or her consent, participation and cooperation. It has
to be reviewed periodically.
The duration of the non-custodial measures shall be established by the
competent authority in accordance with law; the measure can be
terminated early and may also be prolonged if necessary in the interest of
the offender.
The conditions attached to non-custodial measures shall take into account
the needs of society and the needs and rights of the offender and victim.
The conditions shall be realistic and precise and shall be explained to the
offender both orally and in writing.
It may be necessary to develop special treatment schemes to deal with
the
needs and problems of particularly difficult categories of offenders.
In case of breach of the conditions attached to non-custodial measures,
the
measures may be modified or revoked. However, such a breach should not
automatically lead to deprivation of liberty.
and Lawyers in Choosing
Alternatives to Imprisonment
Judges, prosecutors and lawyers have a fundamental role in deciding whether
to subject offenders to non-custodial measures rather than to imprisonment. The
powers granted to the legal professions by domestic law on this subject
undoubtedly
vary a great deal, but, given the adverse effect that imprisonment often has on
juvenile
offenders in particular, as well as the heavy social costs of imprisonment, every
opportunity should be explored to provide offenders with a chance of
rehabilitation by
means of less drastic but possibly more efficient sanctions than imprisonment.
However, generalized use of non-custodial measures requires the
development of a considerable network of skilled people, not only within the
judicial
and prosecuting bodies but also within the social and administrative authorities.
Careful
and concerted efforts are thus required by authorities at all levels in order to
elaborate a
range of non-custodial measures that can be applied flexibly and adjusted to the
specific
needs of individual offenders.
Judges, prosecutors and lawyers, with their particularly close links to and
experience of suspected and accused offenders, have a particularly important
role to
play in defining the problems and the appropriate solutions, and in stimulating
an open
debate in society regarding crime and ways of sanctioning offenders.
Lawyers 395
The present chapter has focused on explaining some of the major features of
the United Nations Standard Minimum Rules for Non-custodial Measures, which is
an
instrument that strongly promotes the use of non-custodial measures whenever
such
measures are likely to promote the social reintegration of an offender, having
regard to
such community interests as the prevention of crime, respect for the law, and
the
interests of the victims. Non-custodial measures are a legal field that is far from
having
been fully explored, but which has important potential from which both the
community and offenders could benefit. Sanctions for the commission of criminal
offences are in general a subject of continuing debate and scrutiny, in particular,
but not
exclusively, as it relates to juvenile offenders. As our societies evolve and
change, so to
some extent do the crimes committed, and the question of sanctions largo sensu
will thus
continue to be a subject of great concern and interest to the community.
.........Chapter 10
THE RIGHTS OF THE CHILD
IN THE ADMINISTRATION
OF JUSTICE...........................
Learning Objectives
_ To familiarize participants with the main international legal rules
concerning the
rights of the child in the administration of justice and their main purposes;
_ To specify the procedural safeguards which should be accorded to the
child in the
administration of justice;
_ To encourage participants to develop ways of ensuring that they
routinely apply these
rights and safeguards when confronted with children in the course of the
administration of justice.
Questions
_ What particular problems have you encountered in your work with regard
to children
and juveniles in the course of the administration of justice?
_ How did you try to solve these problems?
_ Did you try to invoke international legal rules such as the Convention on
the Rights
of the Child in order to solve the problem or problems concerned?
_ What legal status does the Convention on the Rights of the Child have in
your
country? What legal impact has it had so far?
_ Does the notion of the “best interests” of the child exist in the domestic
legal system
within which you work? If so, what does it mean, and how is it applied?
_ To what extent is the child allowed to participate in decisions concerning
him or her in
the legal system within which you work? Examine the situation from the
point of
view of criminal, separation and adoption proceedings.
_ What is the age of criminal responsibility in the country where you work?
_ Can prison sentences be imposed on children below 18 years of age in
the country
where you work, and if so, of what duration?
Lawyers 397
Questions (cont.d)
_ What non-custodial measures are available in response to offences
committed by
children or juveniles in your country?
_ On what grounds can a child be separated from his or her parents in the
country
where you work?
_ Are adoptions authorized in the country where you work? If so, does the
child have a
right to express his or her views on the desirability of the adoption?
_ What measures have been taken in the country/countries where you
work in order to
familiarize the legal professions with the legal principles contained in the
Convention
on the Rights of the Child and other relevant legal instruments?
_ Convention on the Rights of the Child, 1989
*****
_ Declaration of the Rights of the Child, 1959
_ United Nations Standard Minimum Rules for the Administration of
Juvenile Justice (The Beijing Rules), 1985
_ United Nations Rules for the Protection of Juveniles Deprived of their
Liberty, 1990
_ United Nations Guidelines for the Prevention of Juvenile Delinquency
(The Riyadh Guidelines), 1990
_ Declaration on Social and Legal Principles relating to the Protection
and Welfare of Children, with Special Reference to Foster Placement
and Adoption Nationally and Internationally, 1986
_ Guidelines for Action on Children in the Criminal Justice System,
Annex to Economic and Social Council resolution 1997/30, on
Administration of juvenile justice
Chapter 10 • The Rights of the Child in the Administration of Justice
_ African Charter on the Rights and Welfare of the Child, 1990
*****
_Recommendation No. R (87) 20 of the Committee of Ministers of the
Council of Europe to Member States on Social Reactions to Juvenile
Delinquency
1. Introduction
As its title indicates, the present chapter will not deal with the subject of the
rights of the child as such, but will be limited to explaining the principal
international
legal standards concerning the rights of the child in the administration of
justice.1
Although the general human rights treaties such as the International Covenant
on Civil
and Political Rights and the regional conventions are equally applicable to
children, the
point of departure for the analysis in this chapter will be the Convention on the
Rights
of the Child, which entered into force on 2 September 1990, and which, as of 8
February 2002, had been ratified by 191 States. This Convention has developed
into an
essential world-wide legal tool for the enhancement of the rights of the child in
general
and, inter alia, those children who are affected by the administration of justice
through
criminal, separation or adoption proceedings. The Convention was an overdue
response to the urgent need to elaborate a legally binding document that would
focus
exclusively on the specific needs and interests of the child, which, as will be seen
below,
differ in important respects from those of adults. Prior to the adoption of this
Convention, the child had been at the centre of the brief 1959 Declaration of the
Rights
of the Child, which does not, however, cover the various issues relating to the
administration of justice per se.
This chapter will also examine the rules contained in particular in the United
Nations Standard Minimum Rules for the Administration of Juvenile Justice (the
Beijing Rules), the United Nations Rules for the Protection of Juveniles Deprived
of
their Liberty and the United Nations Guidelines for the Prevention of Juvenile
Delinquency (the Riyadh Guidelines). Although these instruments do not as such
create legally binding obligations, some of the rules contained therein are
binding on
Lawyers 399
1For a complete and useful resource book on the rights of the child, see Implementation Handbook for the
Convention on the Rights of the
Child (New York, UNICEF, 1998), 681 pp. (hereinafter referred to as Implementation Handbook).
States since they are also contained in the Convention on the Rights of the Child,
while
others can be considered to provide “more details on the contents of existing
rights”.2
They are also consistently invoked by the Committee on the Rights of the Child
when it
considers the reports of the States parties under articles 37, 39 and 40 of the
Convention. Lastly, regional legal rules as well as both universal and regional
jurisprudence will be referred to whenever relevant.
After briefly describing current concerns relating to the administration of
juvenile justice, this chapter will consider the meaning of the term “child”, some
basic
principles governing the administration of justice, the aims of juvenile justice and
the
duty to create a juvenile justice system. The chapter will also explain in some
detail the
rules relating to both the accused child and the child deprived of liberty. Finally,
the
chapter will in turn consider the rights of the child and penal sanctions, the rights
of the
child in connection with separation and adoption proceedings, and the role of the
legal
professions in guaranteeing the rights of the child in the course of the
administration of
justice.
1.1 Terminology
To avoid confusion it should be pointed out that the expression “juvenile
justice” will refer to criminal proceedings, while the term “administration of
justice”
will encompass all proceedings, such as criminal, separation and adoption
proceedings.
2. The Administration of Justice
and Children: Persistent
Concerns
Although the Convention on the Rights of the Child has proved a major
milestone in the universal promotion and protection of the rights of the child,
numerous challenges remain to be overcome in many countries before the rights
of the
child can become a living reality, including in particular in situations where
children
come into conflict with the law. Police violence against children is not
uncommon; nor
are involuntary disappearances, arbitrary detentions and the use of
imprisonment for
minor infringements of the law by very young children, despite the fact that
imprisonment should be used only as a means of last resort. Contrary to
international
law, children are also often detained in unacceptable conditions, subjected to
violence
while in detention, including corporal punishment as a disciplinary measure, and
in
some countries even executed for offences committed when they were below
the age of
18. Young female offenders are particularly vulnerable and their needs must be
effectively addressed. The challenges ahead are thus considerable, and in order
to make
2See statement as to the Beijing Rules, “The United Nations and Juvenile Justice: A Guide to International
Standards and Best
Practice”, in International Review of Criminal Policy, Nos. 49 and 50, 1998-1999 (New York, United Nations,
1999), p. 5, para. 38
(hereinafter referred to as The United Nations and Juvenile Justice).
progress in this important field of legal protection, vigorous, concerted and
effective
efforts are required at both the international and national levels.3 The effective
implementation of the rights of the child is thus the responsibility of all
Governments
and members of the legal professions as well as of all adults who deal with
children,
such as parents, relatives, friends and teachers.
3. The Definition of “Child”
3.1 The age of majority in general
Article 1 of the Convention on the Rights of the Child provides that, for the
purposes of the Convention, “a child means every human being below the age of
eighteen years unless under the law applicable to the child, majority is attained
earlier”.
With regard to the beginning of childhood, the Convention does not take a
position
as to whether it begins at birth or at some other particular point, such as the
moment of
conception. However, this is an issue that does not need to be considered further
for
the purposes of this chapter.4
As to the end of childhood, while the Convention contains some inherent
flexibility, it must be presumed that States parties are not allowed to set the age
of
majority unduly low in order to avoid their legal obligations under the treaty. It is
clear
from the work of the Committee on the Rights of the Child, the body set up under
the
Convention to monitor its implementation, that the setting of minimum ages for,
inter
alia, marriage and employment must respect the Convention as a whole, and in
particular the basic principle of the best interests of the child and the principle of
non-discrimination.5
3.2 The age of criminal responsibility
As concerns the age of criminal responsibility, the Convention on the
Rights of the Child fixes no limit, but provides in article 40(3)(a) that the States
parties
shall in particular seek “the establishment of aminimum age below which
children shall
be presumed not to have the capacity to infringe the penal law”. The Committee
on the
Rights of the Child has therefore noted with concern the “lack of a minimum
age
below which children are presumed not to have the capacity to infringe penal
law” and
recommended that such an age be fixed by law.6 It has also expressed concern
with
regard to penal codes which set the age of criminal responsibility at, for
instance, seven
Lawyers 401
3For a survey of violations of the rights of the child, see e.g. Eric Sottas and Esther Bron, Exactions et
Enfants, Geneva,
OMTC/SOS Torture, 1993, 84 pp.
4For a more detailed discussion of this issue see Implementation Handbook, pp. 1-4.
5UN doc. CRC/C/15/Add. 9, Concluding Observations of the Committee on the Rights of the Child: El
Salvador, para. 10; and UN doc.
CRC/C/15/Add.44, Concluding Observations: Senegal, paras. 11 and 25.
6UN doc. CRC/C/15/Add.44, Concluding Observations: Senegal, paras. 11 and 25; emphasis added.
or ten years, which, in its view, is “very low”.7 When examining the South
African draft
legislation aimed at increasing the legal minimum age of criminal responsibility
from
seven to ten years, the Committee noted that it remained concerned because
this was
“still a relatively low age for criminal responsibility”.8 In spite of the concern
expressed
several times at these very low ages of criminal responsibility at the domestic
level, the
Committee has not suggested what an appropriate minimum age might be.
The Committee has expressed particular concern when children aged 16 to 18
years are treated as adults for purposes of application of criminal law. In the
view of the
Committee the States parties to the Convention should extend to all minors
under 18
years of age the special protection provided by penal law to children.9
*****
It is noteworthy in this respect that, in its General Comment No. 17 on article
24 of the International Covenant on Civil and Political Rights, the Human Rights
Committee emphasized that the age limit for purposes such as civil matters,
criminal
responsibility or labour law, “should not be set unreasonably low and that in
any case a
State party cannot absolve itself from its obligations under the Covenant
regarding
persons under the age of 18, notwithstanding that they have reached the age of
majority
under domestic law”.10
In General Comment No. 21 on article 10 of the Covenant, the Committee
then noted that this article “does not indicate any limits of juvenile age”, adding
that,
while “this is to be determined by each State party in the light of relevant social,
cultural
and other conditions, the Committee is of the opinion that article 6, paragraph 5,
suggests that all persons under the age of 18 should be treated as juveniles, at
least in
matters relating to criminal justice”.11 It is noteworthy in this respect that,
according to
article 6(5) of the International Covenant, death sentences “shall not be imposed
for
crimes committed by persons below eighteen years of age”.
*****
Rule 4(1) of the United Nations Standard Minimum Rules for the
Administration of Juvenile Justice (hereinafter referred to as the Beijing Rules)
provides
that “in those legal systems recognizing the concept of the age of criminal
responsibility
for juveniles, the beginning of that age shall not be fixed at too low an age level,
bearing
in mind the facts of emotional, mental and intellectual maturity”. The
Commentary to this
provision reads as follows:
7As to India (7 years), see UN doc. CRC/C/94, Committee on the Rights of the Child: Report on the twenty-
third session (2000), para. 58
and as to Sierra Leone (10 years), see ibid., para. 143.
8Ibid., para. 430.
9See e.g. as to the Maldives in UN doc. CRC/C/79, Report on the eighteenth session (1998), paras. 219 and
240; as to the Democratic
People’s Republic of Korea, ibid., paras. 83 and 98; as to Fiji, ibid., paras. 125 and 145, and as to
Luxembourg, ibid., para. 263.
10See United Nations Compilation of General Comments, p. 133, para. 4. See also Implementation
Handbook, pp. 4-14. Article 24 of the
Covenant prohibits, inter alia, discrimination against children and proclaims the right of every child to
special measures of protection,
to be registered immediately after birth, to have a name and to acquire a nationality.
“The minimum age of criminal responsibility differs widely owing to
history and culture. The modern approach would be to consider whether a
child can live up to the moral and psychological components of criminal
responsibility; that is, whether a child, by virtue of her or his individual
discernment and understanding, can be held responsible for essentially
anti-social behaviour. If the age of criminal responsibility is fixed too low
or if there is no lower age limit at all, the notion of responsibility would
become meaningless. In general, there is a close relationship between the
notion of responsibility for delinquent or criminal behaviour and other
social rights and responsibilities (such as marital status, civil majority, etc.).
Efforts should therefore be made to agree on a reasonable lowest age limit
that is applicable internationally.”
*****
However, there continue to be wide discrepancies between countries even at
the regional level; in Europe, for instance, the age of criminal responsibility
varies from
seven to eighteen years of age. Considering that there is not “at this stage any
clear
common standard amongst the member States of the Council of Europe”, the
European Court of Human Rights has concluded that, although “England and
Wales is
among the few European jurisdictions to retain a low age of criminal
responsibility, the
age of ten cannot be said to be so young as to differ disproportionately from the
age-limit followed by other European States”.12 The attribution of criminal
responsibility to such a young child did not therefore per se constitute a breach
of
article 3 of the European Convention on Human Rights, which inter alia provides
protection against inhuman and degrading treatment and punishment.13
However, to
judge from the work of the Committee on the Rights of the Child as described
above,
the age of ten would appear to violate the Convention on the Rights of the Child.
Unless otherwise decided, the age of civil majority is eighteen
years. In fixing minimum ages for marriage, labour and military service,
States are legally obliged to respect the best interests of the child and the
principle of non-discrimination.
States shall establish the minimum age for criminal
responsibility. Such minimum age must not be unduly low and must
respect the best interests of the child and the principle of
non-discrimination. Juveniles below eighteen years of age should be able
to
benefit from the special protection provided by criminal law to the child.
Lawyers 403
12Eur. Court HR, Case of T. v. the United Kingdom, judgment of 16 December 1999, para. 72; the text of this
judgment can be found at
www.echr.coe.int.
13Ibid., loc. cit. See also Eur. Court HR, V. v. the United Kingdom, judgment of 16 December 1999, Reports
1999-IX, p. 144, para. 74.
4. The Rights of the Child in the

Administration of Justice:
Some Basic Principles
International human rights law provides a number of general principles which
condition the consideration of all issues relating to the rights of the child,
including the
administration of juvenile justice. This section will deal with four of the most
important
of these principles, namely, (1) the principle of non-discrimination, (2) the best
interests
of the child, (3) the child’s right to life, survival and development, and (4) the
duty to
respect the views of the child. These general principles are consistently
considered by
the Committee on the Rights of the Child in connection with its examination of
periodic reports: the States parties must ensure that these principles “not only
guide
policy discussion and decision-making, but are also appropriately integrated in
all legal
revisions, as well as in judicial and administrative decisions and in projects,
programmes
and services which have an impact on children”.14
4.1 The principle of non-discrimination
Article 2 of the Convention on the Rights of the Child provides that:
“1. States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination of
any kind, irrespective of the child’s or his or her parent’s or legal guardian’s
race, colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status.
2. States Parties shall take all appropriate measures to ensure that the
child is protected against all forms of discrimination or punishment on the
basis of the status, activities, expressed opinions, or beliefs of the child’s
parents, legal guardians, or family members.”
The Committee on the Rights of the Child has in general expressed concern
with regard to certain vulnerable groups of children, such as children in the
juvenile
justice system.15 During the general discussion on the administration of
juvenile justice
organized by the Committee on 13 November 1995, particular concern was aired
“about
instances where criteria of a subjective and arbitrary nature (such as with regard
to the
attainment of puberty, the age of discernment or the personality of the child) still
prevailed in the assessment of the criminal responsibility of children and in
deciding upon
the measures applicable to them”.16 Lastly, the Committee has expressed
concern “at the
insufficiency of measures to prevent and combat discrimination practised against
Roma
children, disabled children and children born out of wedlock” in Bulgaria.17
*****
14See e.g. as to Vanuatu, in UN doc. CRC/C/90, Report on the twenty-second session (1999), para. 149.
15See e.g. as to Belize, in UN doc. CRC/C/84, Report on the twentieth session (1999), para. 75.
16UN doc. CRC/C/46, Report on the tenth session (1995), para. 218.
17UN doc. CRC/C/15/Add.66, Concluding Observations: Bulgaria, para. 12.
The principle of non-discrimination is also, inter alia, contained in article 3 of
the African Charter on the Rights and Welfare of the Child and Rule 2(1) of the
Beijing
Rules. The provisions on non-discrimination and equality in other human rights
instruments of a general nature also remain equally valid when applied to
children (e.g.
arts. 2(1) and 26 of the International Covenant on Civil and Political Rights, art. 2
of the
African Charter on Human and Peoples’ Rights, arts. 1 and 24 of the American
Convention on Human Rights and art. 14 of the European Convention on Human
Rights).
More detailed information on the principle of equality and non-discrimination
is to be found in Chapter 13 of this Manual.
4.2 The best interests of the child
Article 3(1) of the Convention on the Rights of the Child is the key provision
on the principle of best interests and reads as follows:
“1. In all actions concerning children, whether undertaken by public or
private social welfare institutions, courts of law, administrative authorities
or legislative bodies, the best interests of the child shall be a primary
consideration.”
The Committee on the Rights of the Child examines whether the States
parties have given due consideration to the principle of the best interests of the
child in
their domestic legislation and its application in such areas as the legal definition
of the
child, in particular as regards the minimum age for marriage, employment and
military
service.18 It has for instance expressed concern with regard to Bulgaria at “the
insufficient consideration of the principle of the best interests of the child in
tackling
situations of detention, institutionalization and abandonment of children, as well
as in
relation to the right of the child to testify in court”.19
The fact that the best interests of the child “shall be a primary consideration”
(emphasis added) in the decision affecting the child is an indication that “the
best
interests of the child will not always be the single, overriding factor to be
considered”,
but that “there may be competing or conflicting human rights interests, for
example
between individual children, between different groups of children and between
children and adults”.20 However, the child’s interest “must be the subject of
active
consideration”, and “it needs to be demonstrated that children’s interests have
been
explored and taken into account as a primary consideration”.21
*****
Lawyers 405
18See e.g. UN doc. CRC/C/15/Add.9, Concluding Observations: El Salvador, para. 10.
19UN doc. CRC/C/15/Add. 66, Concluding Observations: Bulgaria, para. 12.
20Implementation Handbook, p. 40.
21Ibid., loc. cit.
Article 4(1) of the African Charter on the Rights and Welfare of the Child also
provides that “in all actions concerning the child undertaken by any person or
authority
the best interests of the child shall be the primary consideration”. Although the
principle of the best interests of the child is not expressly included in the
International
Covenant on Civil and Political Rights, the Human Rights Committee has
emphasized
that “the paramount interest of the children” must be borne in mind in
connection with
the dissolution of the marriage of the parents.22
4.3 The child’s right to life, survival and development
Article 6 of the Convention on the Rights of the Child provides that “States
Parties recognize that every child has the inherent right to life” (para. 1) and that
they
“shall ensure to the maximum extent possible the survival and development of
the
child” (para. 2). Article 5 of the African Charter on the Rights and Welfare of the
Child
guarantees to every child “an inherent right to life”, which “shall be protected by
law”
(para. 1). The States parties further undertake to “ensure, to the maximum
extent
possible, the survival, protection and development of the child” (para. 2).
A child’s right to life is of course also equally protected under article 6 of the
International Covenant on Civil and Political Rights, article 4 of the African
Charter on
Human and Peoples’ Rights, article 4 of the American Convention on Human
Rights
and article 2 of the European Convention on Human Rights.
The wording of article 6(2) of the Convention on the Rights of the Child also
makes it clear that the States parties may have to take positive measures in
order to
maximize “the survival and development” of the children within their jurisdiction.
It
may thus be necessary for States to “take appropriate measures”, inter alia “to
diminish
infant and child mortality”, or to provide children with “necessary medical
assistance
and health care” (cf. art. 24 of the Convention on the Rights of the Child). Other
measures that States may have to take in order to protect the child’s inherent
right to life
may be, among many others: to provide adequate nutritious food and clean
drinking
water, to prohibit the death penalty, and to prevent and prohibit extrajudicial,
arbitrary
or summary executions and enforced disappearances.23 It may further be
necessary for
States parties to take effective measures to protect children against the negative
effects
of armed confrontations and to establish rehabilitation measures for child victims
of
such confrontations.24
*****
22See General Comment No. 17 on article 24 of the International Covenant on Civil and Political Rights, in
United Nations
Compilation of General Comments, p. 133, para. 6; see also General Comment No. 19 on article 23, ibid., p.
138, para. 9.
23Manual on Human Rights Reporting 1997, p. 424 (also in Implementation Handbook, p. 87).
24As to Mexico, in UN doc. CRC/C/90, Report on the twenty-second session (1999), para.179.
As pointed out by the Human Rights Committee in General Comment No. 6
on article 6 of the International Covenant, “the right to life has been too often
narrowly
interpreted”; in its view, “the expression ‘inherent right to life’ cannot properly
be
understood in a restrictive manner, and the protection of this right requires that
States
adopt positive measures”.25 It would therefore “be desirable for States parties to
take all
possible measures to reduce infant mortality and to increase life expectancy,
especially
in adopting measures to eliminate malnutrition and epidemics”.26
4.4 The child’s right to be heard
Another important general principle is found in article 12 of the Convention
on the Rights of the Child, according to which:
“1. States Parties shall assure to the child who is capable of forming his
or her own views the right to express those views freely in all matters
affecting the child, the views of the child being given due weight in
accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the
opportunity to be heard in any judicial and administrative proceedings
affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of
national law.”
The Committee on the Rights of the Child has consistently promoted
children’s participatory rights and emphasized the duty of the States parties “to
guarantee their effective enjoyment of the fundamental freedoms, including
those of
opinion, expression and association” as contained in articles 13, 14 and 15 of the
Convention.27 This is an expression of the fact that the child must be regarded as
a
person in its own right or “as an active subject of rights”.28
Article 12(2) of the Convention, indeed, covers “a very wide range of court
hearings and also formal decision-making affecting the child, in for example,
education,
health, planning, the environment and so on”.29
A child’s right to be heard under article12 of the Convention does not mean,
however, that the child has “a right to self-determination”, but only that it has a
right
“to involvement in decision-making”.30 This participation must be genuine and
cannot
be reduced to a formality. Moreover, the older and maturer the child is, the more
weight
will be given to its views. This means that juveniles’ views must be given
particular
weight in the course of proceedings concerning their person.
*****
Lawyers 407
26Ibid., loc. cit.
27As to Mexico, in UN doc. CRC/C/90, Report on the twenty-second session, 20 September-8 October 1999,
para. 181.
29Ibid., loc. cit.
30Ibid.
With regard to the adjudication and disposition of juveniles, Rule 14(2) of
the Beijing Rules also provides that
“The proceedings shall be conducive to the best interests of the juvenile
and shall be conducted in an atmosphere of understanding, which shall
allow the juvenile to participate therein and to express herself or himself
freely.”
The right to be heard in judicial proceedings concerning oneself is, as has been
seen in Chapters 5 to 7 of this Manual, recognized for adults and constitutes an
important procedural safeguard. It is however a right that acquires particular
emphasis
where children are concerned, as special efforts may be needed in order to
ensure that a
child is genuinely heard.
*****
The four above-mentioned general principles identified by the Committee on
the Rights of the Child have to be borne in mind throughout this chapter,
because they
qualify the proceedings linked to the administration of juvenile justice, which
consequently must respect the principles of non-discrimination, the best
interests of
the child, the child’s inherent right to life and the child’s right to be heard.
In the administration of justice, i.e. in criminal proceedings as well as in
proceedings concerning inter alia the separation of a child from its parents
or in adoption proceedings, States are required to respect the following
basic principles:
_ the principle of non-discrimination;
_ the best interests of the child;
_ the child’s right to life, survival and development; and
_ the child’s right to be heard.
5. The Aims of Juvenile Justice

The declared aim of the juvenile justice system as a whole in international
human rights law is the child’s rehabilitation and social reintegration. This
is in
particular clear from article 40(1) of the Convention on the Rights of the Child,
which
reads:
“1. States Parties recognize the right of every child alleged as, accused of,
or recognized as having infringed the penal law to be treated in a manner
consistent with the promotion of the child’s sense of dignity and worth,
which reinforces the child’s respect for the human rights and fundamental
freedoms of others and which takes into account the child’s age and the
desirability of promoting the child’s reintegration and the child’s
assuming a constructive role in society” (emphasis added).
In connection with its consideration of the reports submitted by States
parties, the Committee on the Rights of the Child has expressed concern at the
insufficient number of facilities and programmes for the physical and
psychological
recovery and social reintegration of juveniles,31 “the lack of rehabilitation
measures and
educational facilities for juvenile offenders”, as well as “the placement of
‘potential
delinquents’ in detention centres instead of care institutions for their
rehabilitation”.32
*****
Article 10(3) of the International Covenant on Civil and Political Rights also
provides, inter alia, that “the penitentiary system shall comprise treatment of
prisoners
the essential aim of which shall be their reformation and social
rehabilitation”
(emphasis added).
As stated by the Human Rights Committee, “no penitentiary system should
be only retributory; it should essentially seek the reformation and social
rehabilitation
of the prisoner”.33
*****
According to Rule 5.1 of the Beijing Rules,
“The juvenile justice system shall emphasize the well-being of the juvenile
and shall ensure that any reaction to juvenile offenders shall always be in
proportion to the circumstances of both the offenders and the offence.”
According to the accompanying Commentary, this rule “refers to two of the
most important objectives of juvenile justice”.34 The first objective is thus “the
promotion of the well-being of the juvenile”, which should not only be
emphasized by
those legal systems in which juvenile offenders are dealt with by family courts or
administrative authorities, but also “in those legal systems that follow the
criminal court
model” in order that they contribute “to the avoidance of merely punitive
sanctions”.35
The second objective is the principle of proportionality, which in this
particular context means that “the response to young offenders should be based
on the
consideration not only of the gravity of the offence but also of personal
circumstances”, such as “social status, family situation, the harm caused by the
offence
or other factors affecting personal circumstances”.36 Such circumstances “should
influence the proportionality of the reactions (for example, by having regard to
the
Lawyers 409
31As to Guinea, UN doc. CRC/C/84, Report on the twentieth session, 11-29 January 1999, para. 126 and as
to South Africa, UN doc.
CRC/C/94, Report on the twenty-third session, 10-28 January 2000, para. 445(h).
32See as to Yemen, UN doc. CRC/C/84, Report on the twentieth session, January 1999, para. 184 on the lack
of centres for
rehabilitation of children in conflict with the law; see also as to Nicaragua, UN doc. CRC/C/87, Report on the
twenty-first session,
17 May-4 June 1999, para. 247.
33General Comment No. 21 in United Nations Compilation of General Comments, p. 143, para. 10.
34UN doc. ST/HR/1/Rev.4 (vol. I/Part 1) Human Rights – A Compilation of International Instruments, vol. I
(First Part), Universal
Instruments, p. 360 (hereinafter referred to as Human Rights – A Compilation of International Instruments).
35Ibid., loc. cit.
36Ibid.
offender’s endeavour to indemnify the victim or to her or his willingness to turn
to
wholesome and useful life)”.37
The principle of proportionality must however also be safeguarded in
ensuring the welfare of the young offender so that the measures taken do not go
beyond what is necessary, failing which the fundamental rights of the young
offender
may be infringed.38
In other words, Rule 5 “calls for no less and no more than a fair reaction in any
given cases of juvenile delinquency and crime. The issues combined in the rule
may help
to stimulate development in both regards: new and innovative types of reactions
are as
desirable as precautions against any undue widening of the net of formal social
control
over juveniles.”39
*****
The primary focus on the rehabilitation of the juvenile offender is also present
in article 17(3) of the African Charter on the Rights and Welfare of the Child,
according
to which “the essential aim of treatment of every child during the trial and also if
found
guilty of infringing the penal law shall be his or her reformation, re-
integration into
his or her family and social rehabilitation” (emphasis added). Although not
limited
to juvenile offenders, article 5(6) of the American Convention on Human Rights
stipulates that “punishments consisting of deprivation of liberty shall have as an
essential aim the reform and social readaptation of the prisoners”. The European
Convention on Human Rights is silent on this issue, but in Recommendation No.
R
(87) 20 on Social Reactions to Juvenile Delinquency, the Committee of Ministers
of the
Council of Europe expresses its conviction “that the penal system for minors
should
continue to be characterized by its objective of education and social integration
and that
it should as far as possible abolish imprisonment for minors”.40
Under international human rights law the overall aim of the juvenile
justice system must be to promote the child’s rehabilitation and social
reintegration, including the child’s sense of the dignity and worth of its
own person as well as his or her respect for the fundamental rights of
others.
37Ibid.
38Ibid.
39Ibid.
40For the text of this recommendation, see Council of Europe web site:
http://cm.coe.int/ta/rec/1987/87r20.htm.
6. The Duty to Create a Juvenile
Justice System
In order to be able to give effect to their obligations deriving from the many
international legal rules governing the administration of juvenile justice, States
are
required to pass specific laws and regulations at the national level. According to
article
40(3) of the Convention on the Rights of the Child, “States Parties shall seek to
promote the establishment of laws, procedures, authorities and institutions
specifically
applicable to children alleged as, accused of, or recognized as having infringed
the penal
law”. In particular they shall seek to establish a minimum age of criminal
responsibility,
as well as measures to deal with such children without resorting to judicial
proceedings,
providing that human rights and legal safeguards are fully respected (art. 40(3)
(a) and
(b)).
The Committee on the Rights of the Child has had occasion to express its
serious concern at the absence of such a system of juvenile justice, and in
particular the
absence of laws, procedures and juvenile courts.41 On other occasions it has
stated its
concern at the lack of an efficient and effective administration of juvenile justice
and in
particular its lack of compatibility with the Convention, as well as with other
relevant
United Nations standards.42
States have a legal duty to set up a specific legal system of juvenile
justice,
including juvenile courts, to deal with young offenders and to establish a
minimum age for criminal responsibility.
7. The Accused Child and the
Administration of Justice
The procedural safeguards in relation to arrest, detention, criminal
investigation and trial proceedings dealt with in Chapters 5 to 7 above are of
course
equally valid when children are suspected of having committed a criminal
offence. In
other words, children must be granted the same rights as adults at all
relevant
stages of the criminal procedure, and the Committee on the Rights of the
Child has
expressed concern where due process has not always been so guaranteed.43
Because of the peculiarities of juvenile justice, the procedural safeguards take
on additional importance since they must, inter alia, protect the best interests of
the
child and ensure respect for its rights to be heard and to social reintegration. In
this
section some of the most fundamental rights of the accused child will be
highlighted,
Lawyers 411
41As to Armenia, UN doc. CRC/C/94, Report on the twenty-third session (2000), para. 350.
42As to Grenada, ibid., para. 411(a) and as to South Africa, ibid., para. 455(a).
43As to Nicaragua, see UN doc. CRC/C/87, Report on the twenty-first session (1999), para. 247.
without any attempt to provide an exhaustive analysis of these important rights.
Emphasis will be laid on those rules that are derived from the specific needs of
the
accused child.
7.1 The right to freedom from torture and from cruel,
inhuman or degrading treatment or punishment
According to article 37(a) of the Convention on the Rights of the Child, “no
child shall be subjected to torture or other cruel, inhuman or degrading
treatment or
punishment”; while article 17(2)(a) of the African Charter on the Rights and
Welfare of
the Child stipulates that the States parties “shall ... ensure that no child who is
detained
or imprisoned or otherwise deprived of his/her liberty is subjected to torture,
inhuman
or degrading treatment or punishment”.
The child does of course also benefit from the general protection against
physical and mental abuses found in article 7 of the International Covenant on
Civil and
Political Rights, the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, article 5 of the African Charter on Human
and
Peoples’ Rights, article 5 of the American Convention on Human Rights and
article 3 of
the European Convention on Human Rights. This prohibition is absolute and
cannot
in any circumstances be derogated from.
The prohibition on ill-treatment is of course particularly relevant to children
deprived of their liberty but it also concerns those children who, for instance, are
being
investigated by the police without being arrested or detained. Indeed, the most
critical
periods for a child suspected or accused of having committed a crime are the
police
investigation and pre-trial detention, when he or she is most likely to be
subjected to
ill-treatment and other forms of abuse. It is important to be aware that acts
which
may not be considered to constitute unlawful treatment of an adult
might be
unacceptable in the case of children because of their specific sensitivity
and
particular vulnerability. During the Day of General Discussion on the
administration of juvenile justice organized by the Committee on the Rights of
the
Child, “it was suggested that serious consideration be given to the development
of
independent mechanisms, at the national and international levels, to ensure
periodic
visits to and an effective monitoring” of institutions where children are held.44
Such
visits would be an important tool in preventing maltreatment of children. Another
important measure to prevent unlawful treatment of children by law
enforcement
officials, for instance, would be the organization of courses to train these
professionals
in methods of dealing with young persons constructively.
When considering the periodic report of India, the Committee on the Rights
of the Child expressed concern about the “numerous reports of routine ill-
treatment,
corporal punishment, torture and sexual abuse of children in detention facilities,
and
alleged instances of killings of children living and/or working on the streets by
law
enforcement officials”.45 The Committee therefore recommended “that the
registration of each child taken to a police station be mandatory, including time,
date
45UN doc. CRC/C/94, Report on the twenty-third session (2000), para. 70.
and reason for detention, and that such detention be subject to frequent
mandatory
review by a magistrate”. The Committee also encouraged the State party to
amend the
Code of Criminal Procedure “so that medical examination, including age
verification, is
mandatory at the time of detention and at regular intervals”.46 Lastly, it also
recommended that the Juvenile Justice Act be amended “to provide for
complaints and
prosecution mechanisms for cases of custodial abuse of children”.47
According to article 39 of the Convention on the Rights of the Child, the
States parties have a legal duty to “take all appropriate measures to promote
physical
and psychological recovery and social reintegration of a child victim of ... torture
or any
other form of cruel, inhuman or degrading treatment or punishment... . Such
recovery
and reintegration shall take place in an environment which fosters the health,
self-respect and dignity of the child”. In the view of the Committee on the Rights
of the
Child, this article “deserves greater attention”, and programmes and strategies
should
therefore be developed to promote the physical and psychological recovery and
social
reintegration of, inter alia, children in the system of administration of justice.48
*****
On the interpretation of article 7 of the International Covenant on Civil and
Political Rights, the Human Rights Committee has held that the prohibition on
ill-treatment “must extend to corporal punishment, including excessive
chastisement
ordered as punishment for a crime or as an educative or disciplinary measure”,
emphasizing, moreover, that this article “protects, in particular, children, pupils
and
patients in teaching and medical institutions”.49 For more details on the issue of
corporal punishment, see also Chapter 8, subsection 2.3.3.
The child has at all times an absolute right not to be subjected to torture
or to cruel, inhuman or degrading treatment or punishment. This
prohibition includes corporal punishment imposed as punishment for an
offence or as an educative or disciplinary measure.
A child victim of abuse has the right to appropriate measures to promote
his or her physical and psychological recovery and social reintegration.
7.2 General treatment of the child/the child’s
best interests
According to both articles 3(1) and 40(1) of the Convention on the Rights of
the Child, the best interests of the child shall be the basic principle guiding all
institutions and authorities, including courts of law in all actions concerning
children. A
child “alleged as, accused of, or recognized as having infringed the penal law”
has the
Lawyers 413
46Ibid., para. 71.
47Ibid., para. 72.
48UN doc. CRC/C/15/Add.34, Concluding Observations: United Kingdom, para. 39.
49General Comment No. 20, in United Nations Compilation of General Comments, p. 139, para. 5.
right “to be treated in a manner consistent with the promotion of the child’s
sense of
dignity and worth, which reinforces the child’s respect for the human rights and
fundamental freedoms of others and which takes into account the child’s age
and the
desirability of promoting the child’s reintegration and the child’s assuming a
constructive role in society” (art. 40(1)) of the Convention).
Article 17(1) of the African Charter on the Rights and Welfare of the Child
provides that “every child accused or found guilty of having infringed penal law
shall
have the right to special treatment in a manner consistent with the child’s sense
of
dignity and worth and which reinforces the child’s respect for human rights and
fundamental freedoms of others”. The question of the child’s social reintegration
is
dealt with in article 17(3), according to which “the essential aim of treatment of
every
child during the trial and also if found guilty of infringing the penal law shall be
his or
her reformation, re-integration into his or her family and social rehabilitation.”
On the question of the best interests of the child, see also subsection 4.2
above.
The notion of the “best interests” of the child must guide all institutions
and authorities, including courts of law, in all actions concerning children,
with the ultimate aim of promoting his or her social reintegration.
7.3 Some fundamental procedural rights
Every child alleged as, or accused of, having infringed the penal law shall have,
as a very minimum, the guarantees enumerated in article 40(2)(a) and (b) of
the
Convention on the Rights of the Child. While some of these guarantees are
principles
generally established in international human rights law, others are designed to
meet the
specific needs and interests of children.50 At the same time it must be borne in
mind
that, whenever relevant, the procedural rights contained in other international
human
rights treaties must also be ensured during the administration of juvenile justice.
However, since those procedural rights have been dealt with in some depth in
Chapters
5 to 7, they will not be repeated here.
7.3.1 The principle of nullum crimen sine lege
The principle of nullum crimen sine lege is a fundamental principle guaranteed
by
article 40(2)(a) of the Convention on the Rights of the Child, according to which
“no
child shall be alleged as, be accused of, or recognized as having infringed the
penal law
by reason of acts or omissions that were not prohibited by national or
international law
at the time they were committed”. This is such an important legal principle that
it has
been made non-derogable under article 4(2) of the International Covenant on
Civil and
Political Rights, article 27(2) of the American Convention on Human Rights and
article
15(2) of the European Convention on Human Rights. On this principle see also
Chapter 7, section 3.11.
7.3.2 The right to be presumed innocent
The right of the child “to be presumed innocent until proven guilty according
to law” is contained in article 40(2)(b)(i) of the Convention on the Rights of the
Child,
while article 17(2)(c)(i) of the African Charter on the Rights and Welfare of the
Child
guarantees the right of the child to be “presumed innocent until duly recognized
guilty”.
The Committee on the Rights of the Child expressed concern that the United
Kingdom’s Criminal Evidence (N.I.) Order 1988 “appears to be incompatible with”
article 40 of the Convention and, “in particular with the right to presumption of
innocence and the right not to be compelled to give testimony or confess guilt”;
according to this law “silence in response to police questioning can be used to
support a
finding of guilt against a child over 10 years of age in Northern Ireland. Silence at
trial
can be similarly used against children over 14 years of age.”51 The Committee
therefore
recommended “that the emergency and other legislation, including in relation to
the
system of administration of juvenile justice, ... in operation in Northern Ireland
should
be reviewed to ensure its consistency with the principles and provisions of the
Convention”.52 On the right to be presumed innocent until proved guilty see also
Chapter 6, section 5.
7.3.3 The right to prompt information and the right to legal
assistance
Article 40(2)(b)(ii) proclaims the right of the child “to be informed promptly
and directly of the charges against him or her, and, if appropriate, through his or
her
parents or legal guardians, and to have legal or other appropriate assistance in
the
preparation and presentation of his or her defence”. If compared with other
similar
international legal provisions, such as articles 9(2) and 14(3)(a) of the
International
Covenant on Civil and Political Rights, the Convention on the Rights of the Child
differs, first, in that “if appropriate”, the child may be informed through his or
her
parents or legal guardians; secondly, in that the reference to the right of the
child “to
have legal or other appropriate assistance” (emphasis added) in the
preparation and
presentation of his or her defence is a modification compared to general human
rights
law.53 The reference to “other appropriate assistance” makes it possible for a
child to
have his or her defence assured by non-lawyers. However, it must be presumed
that, in
the best interests of the child and for reasons of justice, such assistance should
only be
resorted to in cases of minor infringements of the law.
The African Charter on the Rights and Welfare of the Child provides in this
respect that every child accused of infringing penal law “shall be informed
promptly in a
language that he understands and in detail of the charge against him” (art. 17(2)
(c)(ii))
and “shall be afforded legal and other appropriate assistance in the preparation
and
presentation of his defence” (art. 17(2)(c)(iii)).
Lawyers 415
51UN doc. CRC/C/15/Add. 34, Concluding Observations: United Kingdom, para. 20.
52Ibid., para. 34.
53As to the first requirement, cf. Implementation Handbook, p. 548.
7.3.4 The right to be tried without delay
Article 40(2)(b)(iii) provides that the child has the right “to have the matter
determined without delay by a competent, independent and impartial authority
or
judicial body in a fair hearing according to law, in the presence of legal or other
appropriate assistance and, unless it is considered not to be in the best interest
of the
child, in particular, taking into account his or her age or situation, his or her
parents or
legal guardians”. Article 17(2)(c)(iv) of the African Charter on the Rights and
Welfare of
the Child more laconically proclaims that the accused child “shall have the
matter
determined as speedily as possible by an impartial tribunal ...”.
As was seen in Chapter 7, international human rights treaties guarantee the
right to be tried “without undue delay” (art. 14(3)(c) of the International
Covenant on
Civil and Political Rights) or “within a reasonable time” (art. 6(1) of the European
Convention on Human Rights). With regard to children, however, the
question of
swiftness of the proceedings is particularly important and the child
must
therefore be tried “without delay”, the adjective “undue” having been
omitted
from article 40 of the Convention on the Rights of the Child.
Article 40(2)(b)(iii) otherwise reflects the fundamental principle that the
adjudication of persons accused of having committed a criminal offence must be
made by
a competent, independent and impartial body which must guarantee the
accused a fair
hearing. For more details about these fundamental principles, see Chapters 4
and 7.
This provision also implies that there may be cases when it is considered to be
in the best interest of the child concerned to exclude his or her parents or legal
guardians from the proceedings. On this same issue Rule 15.2 of the Beijing
Rules
provides that
“The parents or the guardian shall be entitled to participate in the
proceedings and may be required by the competent authority to attend
them in the interest of the juvenile. They may, however, be denied
participation by the competent authority if there are reasons to assume that
such exclusion is necessary in the interest of the juvenile.”
According to the Commentary to Rule 15.2, the right of parents or guardians to
participate in the proceedings “should be viewed as general psychological and
emotional assistance to the juvenile – a function extending throughout the
procedure”.54 The Commentary provides the following explanation of the
possibility of
excluding parents or legal guardians from the procedure:
“The competent authority’s search for an adequate disposition of the case
may profit, in particular, from the co-operation of the legal representatives
of the juvenile (or, for that matter, some other personal assistant who the
juvenile can and does really trust). Such concern can be thwarted if the
presence of parents or guardians at the hearings plays a negative role, for
instance, if they display a hostile attitude towards the juvenile, hence, the
possibility of their exclusion must be provided for.”55
54Human Rights – A Compilation of International Instruments, p. 368.
55Ibid., pp. 368-369.
It is reasonable to conclude that the same ground could also justify exclusion
of the child’s parents or legal guardian under article 40(2)(b)(iii) of the
Convention on
the Rights of the Child.
It is of course particularly important that children have prompt access to legal
counsel.56
7.3.5 The right not to incriminate oneself and the right to examine
and have witnesses
Article 40(2)(b)(iv) of the Convention on the Rights of the Child contains two
separate rights namely, the right of the child “not to be compelled to give
testimony or
to confess guilt”; and, second, the right “to examine or have examined adverse
witnesses and to obtain the participation and examination of witnesses on his or
her
behalf under conditions of equality”.
As noted above, the Committee on the Rights of the Child expressed concern
about a law authorizing the police to use silence in response to questioning to
support a
finding of guilt against a child over ten years of age, since such a rule appeared
to be
incompatible inter alia with the right not to be compelled to give testimony or
confess
guilt.57 It must also be emphasized in this context that international human rights
law
prohibits the use of confessions obtained by illegal means, and this prohibition
holds
true a fortiori in the framework of the administration of juvenile justice.
As to “the right not to be compelled to testify against oneself or to confess
guilt”, see also Chapter 7, section 3.7.
7.3.6 The right to review
If a child has been found to have infringed penal law, article 40(2)(b)(v)
prescribes that he or she has the right “to have this decision and any measures
imposed
in consequence thereof reviewed by a higher competent, independent and
impartial
authority or judicial body according to law”. The right to “an appeal by a higher
tribunal” is also guaranteed by article 17(2)(c)(iv) of the African Charter on the
Rights
and Welfare of the Child.
The right to appeal against conviction and sentence is further contained in
article 14(5) of the International Covenant on Civil and Political Rights, article
8(2)(h)
of the American Convention on Human Rights and article 2 of Protocol No. 7 to
the
European Convention on Human Rights, although the latter authorizes
exceptions
inter alia“in regard to offences of a minor character”.
The Committee on the Rights of the Child encouraged Denmark to withdraw
its reservation to article 40(2)(b)(v), whereby it justified a limitation on the right
to
appeal in certain circumstances.58
Lawyers 417
56UN doc. CRC/C/15/Add.66, Concluding Observations: Bulgaria, para. 34.
57UN doc. CRC/C/15/Add.34, Concluding Observations: United Kingdom, paras. 20 and 34.
58UN doc. CRC/C/15/Add.33, Concluding Observations: Denmark, paras. 8 and 16.
7.3.7 The right to free assistance of an interpreter
According to article 40(2)(b)(vi) of the Convention on the Rights of the Child,
the child has the right “to have the free assistance of an interpreter if [he or she]
cannot
understand or speak the language used”. The same rule is contained in article
17(2)(c)(ii)
of the African Charter on the Rights and Welfare of the Child.
This is yet another rule that also exists in other international human rights
treaties, such as in article 14(3)(f) of the International Covenant on Civil and
Political
Rights, article 8(2)(a) of the American Convention on Human Rights and article
6(3)(e)
of the European Convention on Human Rights. This rule is important not only for
children who speak a different language but also for those who are disabled.59
7.3.8 The right to respect for privacy
The accused child has the right “to have his or her privacy fully respected at all
stages of the proceedings” (art. 40(2)(b)(vii)). This right is further developed in
Rule 8
of the Beijing Rules, according to which “the juvenile’s right to privacy shall be
respected at all stages in order to avoid harm being caused to her or him by
undue
publicity or by the process of labelling. In principle, no information that may lead
to the
identification of a juvenile offender shall be published” (Rule 8.1 and 8.2).
As explained in the Commentary, this rule “stresses the importance of the
protection of the juvenile’s rights to privacy. Young persons are particularly
susceptible
to stigmatization. Criminological research into labelling processes has provided
evidence of the detrimental effects (of different kinds) resulting from the
permanent
identification of young persons as ‘delinquent’ or ‘criminal’”.60 Secondly, Rule 8
“stresses the importance of protecting the juvenile from the adverse effects that
may
result from the publication in the mass media of information about the case (for
example the names of young offenders, alleged or convicted).” Thus, “the
interest of
the individual should be protected and upheld, at least in principle”.61
The need to protect the juvenile’s right to privacy justifies an exception to the
basic rule that court proceedings shall be held in public, as established in
particular in
article 14(1) of the International Covenant on Civil and Political Rights, article
8(5) of
the American Convention on Human Rights and article 6(1) of the European
Convention on Human Rights. Such an exception is also foreseen by article 14(1)
of the
International Covenant, according to which “the Press and the public may be
excluded
from all or part of a trial for reasons of morals ... in a democratic society, or when
the
interest of the private lives of the parties so requires ...”. It is further stipulated
that “any
judgement rendered in a criminal case or in a suit at law shall be made public
except
where the interest of juvenile persons otherwise requires or the proceedings
concern
matrimonial disputes or the guardianship of children”.
61Ibid., loc. cit.
Article 6(1) of the European Convention on Human Rights does not make
any exception for juveniles with regard to the public pronouncement of
judgements,
but allows for in camera proceedings “where the interests of juveniles or the
protection
of the private life of the parties so require, or to the extent strictly necessary in
the
opinion of the court in special circumstances where publicity would prejudice the
interests of justice”. Article 8(5) of the American Convention on Human Rights is
more
laconic on the issue of publicity and provides only that “criminal proceedings
shall be
public, except insofar as may be necessary to protect the interests of justice”.
Since it is
normally considered to be in the best interests of juveniles that they should
enjoy the
benefit of closed proceedings, that would logically also seem to be implied by
article
8(5) of the American Convention. Article 17(2)(d) of the African Charter on the
Rights
and Welfare of the Child categorically affirms that the States parties “shall ...
prohibit
the press and the public from the trial”.
*****
In order to protect the juvenile’s right to privacy, Rule 21 of the Beijing Rules
also regulates the handling of records of juvenile offenders in the following
terms:
“21.1 Records of juvenile offenders shall be kept strictly confidential and
closed to third parties. Access to such records shall be limited to persons
directly concerned with the disposition of the case at hand or other duly
authorized persons.
21.2 Records of juvenile offenders shall not be used in adult proceedings
in subsequent cases involving the same offender.”
According to the Commentary, this rule “attempts to achieve a balance between
conflicting interests connected with records or files: those of the police,
prosecution
and other authorities in improving control versus the interests of the juvenile
offender”.62 As to the reference to “other duly authorized persons”, it “would
generally
include, among others, researchers”.63
In its report on the general discussion on the administration of juvenile justice
held in November 1995, the Committee on the Rights of the Child emphasized
that
“the privacy of the child should be fully respected in all stages of proceedings,
including
in relation to criminal records and possible reporting by the media”.64
*****
As can be seen from the above provisions, the right of the accused
child/juvenile to enjoy respect for his or her privacy in connection with criminal
proceedings is far-reaching, extending far beyond the protection from which
adult
offenders have a right to benefit.
Lawyers 419
62Ibid., p. 373.
63Ibid., p. 374.
Every child alleged as, or accused of, having infringed penal law has the
right to full due process guarantees. In particular, every child has:
_ the right to have his or her best interests taken into consideration
throughout the legal proceedings and to be accorded treatment likely to
promote his or her future reintegration into society;
_ the right to benefit from the principle of nullum crimen sine
lege;
_ the right to be presumed innocent until proved guilty;
_ the right to prompt information and prompt legal assistance;
_ the right to be tried without delay by a competent, independent
and impartial authority or judicial body guaranteeing the child a fair
hearing;
_ the right not to incriminate himself or herself and the right to examine
witnesses or have witnesses called under conditions of equality with the
prosecution;
_ the right to appeal;
_ the right to free assistance of an interpreter whenever necessary;
_ the right to respect for his or her privacy.
8. The Child and Deprivation of

Liberty
Deprivation of the liberty of a child poses a special problem in that the child,
who is still at a very sensitive stage of development, may suffer serious and even
irreversible adverse psychological effects if removed from its family for purposes
of
detention. For this reason, international human rights law tries to reduce the
deprivation of liberty of children to a minimum. In order to mitigate the negative
effects of the deprivation of liberty when it occurs, international law likewise
provides
special rules based on the best interests of the child concerned. The principal
legal
sources referred to in this section are the Convention on the Rights of the Child,
the
United Nations Rules for the Protection of Juveniles Deprived of their Liberty and
the
African Charter on the Rights and Welfare of the Child. Although the United
Nations
Rules for the Protection of Juveniles (hereinafter referred to as the United Nations
Rules) are not, as such, binding on Governments, many of the rules contained
therein
are binding either because they are also found in the Convention on the Rights of
the
Child or because they constitute “facets of rights enshrined in the Convention”.65
65The United Nations and Juvenile Justice: A Guide to International Standards and Best Practice, p. 24, para.
243.
Although the present chapter primarily concerns the rights of children
suspected of having committed a criminal offence, the rules described
below are
applicable to all forms of deprivation of liberty irrespective of the
grounds
invoked in support thereof (suspected crime, welfare of the child,
mental health
reasons and so forth).
8.1 The meaning of deprivation of liberty
The notion of deprivation of liberty as applicable to children and juveniles is
not defined in article 37 of the Convention on the Rights of the Child, but
according to
Rule 11(b) of the United Nations Rules,
“The deprivation of liberty means any form of detention or imprisonment
or the placement of a person in a public or private custodial setting, from
which this person is not permitted to leave at will, by order of any judicial,
administrative or other public authority.”
Consequently, the rules are “applicable to all forms of deprivation of liberty in
whatever type of institution the deprivation of liberty occurs”.66
8.2 Deprivation of liberty: a measure of last resort
Article 37(b) of the Convention on the Rights of the Child provides, first, that
“no child shall be deprived of his or her liberty unlawfully or arbitrarily”.
Secondly, it
specifies in this respect that
“The arrest, detention or imprisonment of a child shall be in conformity
with the law and shall be used only as a measure of last resort and for the
shortest appropriate period of time”.
In order to be consistent with international standards, the deprivation of
liberty of a child must consequently:
_ be lawful and not arbitrary;
_ be imposed as a measure of last resort, i.e. when no other appropriate
alternative
measures are at the authorities’ disposal to deal with the child concerned; and
finally,
_ last only “for the shortest appropriate period of time”.
The rule that the deprivation of liberty of a juvenile shall be a measure of last
resort is confirmed in Rules 1 and 2 of the United Nations Rules. Rule 2 further
provides that the deprivation of liberty “should be ... for the minimum necessary
period
and should be limited to exceptional cases”. Lastly, according to this rule, “the
length of
the sanction should be determined by the judicial authority, without precluding
the
possibility of his or her early release”.
Lawyers 421
66Ibid., para. 240.
In its report on the general discussion on the administration of juvenile justice,
the Committee on the Rights of the Child emphasized that “deprivation of liberty,
in
particular pre-trial detention, should never be unlawful or arbitrary and should
only be
used once all other alternative solutions would have proved inadequate”.67
During its
consideration of the States parties’ reports, the Committee has several times
expressed
concern at the fact that deprivation of liberty is not (systematically) used as
ameasure of
last resort68 and for the shortest possible period of time.69 The Committee has
also
complained of “extended periods of pre-trial detention of juvenile detainees at
the
discretion of the Procurator” in the Russian Federation.70 In line with these
concerns,
the Committee has emphasized the need for strengthening and increasing
efforts to
develop alternatives to deprivation of liberty.71
According to Rule 30 of the United Nations Rules, open detention facilities
should be established, “with no or minimal security measures. The population in
such
detention facilities should be as small as possible. The number of juveniles
detained in
closed facilities should be small enough to enable individualized treatment”.
In accordance with article 2 of the Convention on the Rights of the Child,
deprivation of liberty must also be resorted to in a non-discriminatory manner.
8.3 The rights of the child deprived of liberty
While the civil rights of detained persons as explained in Chapters 5 to 7 are
also applicable to children, the arrested, detained or imprisoned child has
additional
rights on account of his or her young age, which requires that the treatment of
the child
be adjusted so as to meet his or her specific needs. In other words, the
treatment of the
child must at all times be defined according to his or her best interests.
8.3.1 The right to humane treatment
Article 37(c) of the Convention on the Rights of the Child complements the
prohibition on ill-treatment in article 37(a) by providing that “every child
deprived of
liberty shall be treated with humanity and respect for the inherent dignity of the
human
person, and in a manner which takes into account the needs of persons
of his or
her age”(emphasis added). The positive right to humane treatment is in general
also
expressly guaranteed by article 10(1) of the International Covenant on Civil and
Political Rights and article 5(2) of the American Convention on Human Rights,
while
article 17(1) of the African Charter on the Rights and Welfare of the Child, as
already
noted, stipulates that “every child accused or found guilty of having infringed
penal law
shall have the right to special treatment in a manner consistent with the child’s
sense of
dignity and worth and which reinforces the child’s respect for human rights and
fundamental freedoms of others”.
68See e.g. as to Venezuela, in UN doc. CRC/C/90, Report on the twenty-second session (1999), para. 61(b)
and as to Mexico, ibid.,
para. 192(b).
69See as to Iraq, in UN doc. CRC/C/80, Report on the nineteenth session (1998), para. 86.
70UN doc. CRC/C/90, Report on the twenty-second session (1999), para. 130.
71See as to Peru, in UN doc. CRC/C/94, Report on the twenty-third session (2000), para. 381(c), and as to
Honduras, in UN doc.
CRC/C/87, Report on the twenty-first session (1999), para. 130.
8.3.2 The right of the child to be separated from adults
Article 37(c) provides in this respect that “in particular, every child deprived
of liberty shall be separated from adults unless it is considered in the child’s best
interest
not to do so”, while, according to article 17(2)(b) of the African Charter on the
Rights
and Welfare of the Child, the States parties “shall ... ensure that children are
separated
from adults in their place of detention or imprisonment”.
Article 10(2)(b) of the International Covenant on Civil and Political Rights
confines itself to stating that “accused juvenile persons shall be separated from
adults
and brought as speedily as possible for adjudication”. Article 5(5) of the
American
Convention on Human Rights stipulates in this respect that minors “while subject
to
criminal proceedings shall be separated from adults and brought before
specialized
tribunals, as speedily as possible, so that they may be treated in accordance
with their
status as minors”.
*****
The Committee on the Rights of the Child has expressed concern about the
fact that some States parties have found it necessary to make reservations to
the
provision obliging them to separate children from adults in the course of
detention or
imprisonment, and has recommended that such reservations be withdrawn.72
The
Committee has also several times expressed concern about the fact that
juveniles are
detained with adults.73 With regard to Sweden, it suggested that “further
consideration
should be given to ensuring that children in detention are separated from adults,
taking
into account the best interests of the child and alternatives to institutional
care”.74 The
Committee deplored the fact that, in Jordan, untried children have been kept in
the
same premises as convicted persons.75 It is clear from the work of the Committee
that
the requirement that juveniles be separated from adults applies to all
institutions,
including psychiatric establishments.76
*****
The Committee against Torture has recommended that juveniles in the
United States “are not held in prison with the regular prison population”.77
*****
According to article 10(2)(a) of the International Covenant, accused persons
shall, furthermore, “save in exceptional circumstances, be segregated from
convicted
persons and shall be subject to separate treatment appropriate to their status as
Lawyers 423
72See e.g. UN doc. CRC/C/15/Add.37, Concluding Observations: Canada, paras. 10 and 18.
73See as to Guinea, in UN doc. CRC/C/84, Report on the twentieth session (1999), para.126; as to Bolivia,
see UN doc, CRC/C/80,
Report on the nineteenth session (1998), para. 117, and as to Mexico, see UN doc. CRC/C/90, Report on the
twenty-second session (1999),
para.192(c), concerning detention in police stations.
74UN doc. CRC/C/15/Add.2, Concluding Observations: Sweden, para. 12.
75UN doc. CRC/C/15/Add.21, Concluding Observations: Jordan, para. 16.
76UN doc. CRC/C/15/Add.53, Concluding Observations: Finland, paras. 16 and 27.
77UN doc. GAOR, A/55/44, p. 32, para. 180(e).
unconvicted persons”. A similar provision is contained in article 5(4) of the
American
Convention on Human Rights. Rule 17 of the United Nations Rules provides that
“untried detainees should be separated from convicted juveniles”.
8.3.3 The right of the child to remain in contact with his or her family
According to article 37(c), every child deprived of liberty “shall have the right
to maintain contact with his or her family through correspondence and visits,
save in
exceptional circumstances”. These exceptional circumstances must be examined
in the
light of the basic principles underlying the Convention, including, in particular,
the best
interests of the child.78
The Committee has on several occasions expressed its concern with regard to
children’s right of access to their parents and families during detention,79 and
has for
instance recommended to the Government of Benin that it “ensure that children
remain in contact with their families while in the juvenile justice system”.80
Rules 59 to 62 of the United Nations Rules contain more detailed instructions
with regard to the right of the detained or imprisoned child to contacts with the
wider
community, including family and friends.
8.3.4 The child’s rights to prompt access to legal assistance and
to legal challenge of detention
In the words of article 37(d) of the Convention on the Rights of the Child,
“Every child deprived of his or her liberty shall have the right to prompt
access to legal and other appropriate assistance, as well as the right to
challenge the legality of the deprivation of his or her liberty before a court
or other competent, independent and impartial authority, and to a prompt
decision on any such action.”
Rule 18(a) of the United Nations Rules adds to this that juveniles should also
“be enabled to apply for free legal aid, where such aid is available, and to
communicate
regularly with their legal advisers. Privacy and confidentiality shall be ensured
for such
communications.”
The fundamental rights to legal assistance as well as to legal challenge of one’s
deprivation of liberty have been explained in some detail in sections 6 and 7 of
Chapter
5 and need not be repeated here. Two differences exist, however, between
article 37(d)
of the Convention on the Rights of the Child and the rules laid down in general
international human rights law. In the first place, article 37(d) refers to “legal
and other
appropriate assistance” (emphasis added), an addition that may for instance
cover a
social assistant in whom the juvenile has particular confidence. The help of such
an
assistant in addition to a practising lawyer may well be in the best interests of
the child.
78Cf. Implementation Handbook, p. 502.
79UN doc. CRC/C/15/Add.4, Concluding Observations: Russian Federation, para. 14 and UN doc.
CRC/C/15/Add.61, Concluding
Observations: Nigeria, para. 23.
80UN doc. CRC/C/87, Report on the twenty-first session (1999), para. 165.
The second difference relates to the right to challenge the legality of the
deprivation of liberty. In accordance with article 9(4) of the International
Covenant on
Civil and Political Rights, for instance, the decision on the lawfulness of the
deprivation
of liberty shall be taken by a “court”, while under article 37(d) of the Convention
on the
Rights of the Child it is either a “court or other competent, independent and
impartial
authority” (emphasis added). Reference can in this respect also be made to Rule
10(2)
of the Beijing Rules, according to which “a judge or other competent official or
body
shall, without delay, consider the issue of release” of a juvenile upon his or her
apprehension. According to the Commentary to this rule, the term “competent
official or
body” “refers to any person or institution in the broadest sense of the term,
including
community boards or police authorities having power to release an arrested
person”.81
The question arises, however, whether community boards or police
authorities possess the requisite independence and impartiality to rule
on the
question of lawfulness of the detention and/or the release of the
juvenile
concerned.
*****
The Committee on the Rights of the Child has expressed concern about the
fact that juveniles in Mexico “have insufficient access to legal assistance”.82
8.3.5 The child and the general conditions of detention
The duty of States to provide special treatment to detained and imprisoned
children adjusted to their needs is an expression of the “best interests” approach
which
permeates the entire Convention. This is also a fundamentally logical rule given
that the
juvenile justice system “should uphold the rights and safety and promote the
physical
and mental well-being of juveniles” (Rule 1 of the United Nations Rules), and,
further,
that the legal rules taken together are aimed at “counteracting the detrimental
effects of
all types of detention and ... fostering integration in society” (Rule 3 of the
United
Nations Rules).
This specifically child-oriented approach implies, furthermore, that “juveniles
detained in facilities should be guaranteed the benefit of meaningful activities
and
programmes which would serve to promote and sustain their health and self-
respect, to
foster their sense of responsibility and encourage those attitudes and skills that
will
assist them in developing their potential as members of society” (Rule 12 of the
United
Nations Rules).
According to article 24(1) of the Convention on the Rights of the Child,
moreover, children are entitled to enjoy “the highest attainable standard of
health and
facilities for the treatment of illness and rehabilitation of health”. Further, “States
Parties shall strive to ensure that no child is deprived of his or her right of access
to such
health care services”. This provision is thus also applicable to children in
detention.
Rule 31 of the United Nations Rules provides, furthermore, that “juveniles
deprived of
their liberty have the right to facilities and services that meet all the
requirements of
Lawyers 425
82UN doc. CRC/C/90, Report on the twenty-second session (1999), para. 192(f).
health and human dignity”. These Rules contain details not only on medical care
(Rules
49-55), but also on the physical environment and accommodation (Rules 31-37),
education, vocational training and work (Rules 38-46), recreation (Rule 47) and
religion
(Rule 48).
*****
The question of access to education is, of course, of particular importance in
preparing a detained or imprisoned juvenile for his or her release. Rule 38 of the
United
Nations Rules provides in this respect that
“Every juvenile of compulsory school age has the right to education suited
to his or her needs and abilities and designed to prepare him or her for
return to society. Such education should be provided outside the detention
facility in community schools wherever possible and, in any case, by
qualified teachers through programmes integrated with the education
system of the country so that, after release, juveniles may continue their
education without difficulty. Special attention should be given by the
administration of the detention facilities to the education of juveniles of
foreign origin or with particular cultural or ethnic needs. Juveniles who are
illiterate or have cognitive or learning difficulties should have the right to
special education.”
As to juveniles above compulsory school age who wish to continue their
education, they “should be permitted and encouraged to do so, and every effort
should
be made to provide them with access to appropriate educational programmes”
(Rule 39
of the United Nations Rules). Needless to say, “diplomas or educational
certificates
awarded to juveniles while in detention should not indicate in any way that the
juvenile
has been institutionalized” (Rule 40).
Any juvenile deprived of his or her liberty should also “have the right to
receive vocational training in occupations likely to prepare him or her for future
employment” (Rule 42), and, “with due regard to proper vocational selection and
to the
requirements of institutional administration, juveniles should be able to choose
the type
of work they wish to perform” (Rule 43).
It is essential that the right to education of the detained child or juvenile
should be guaranteed throughout his or her deprivation of liberty.
*****
The Committee on the Rights of the Child has often had occasion to express
concern about the treatment to which juveniles are subjected while detained or
imprisoned, and also about conditions of detention in general, inter alia in
educational
institutions in the Russian Federation.83 Another recurring concern is that of
overcrowding of detention facilities.84
83See as to Russian Federation, UN doc. CRC/C/90, Report on the twenty-second session (1999), para. 130.
84See as to South Africa, in UN doc. CRC/C/94, Report on the twenty-third session (1999), para. 455, and as
to Belize, in UN doc.
CRC/C/84, Report on the twentieth session (1999), para. 89.
The Committee has likewise repeatedly expressed concern about the
insufficiency of facilities and programmes for the physical and psychological
recovery
and social reintegration of juveniles,85 means which should constitute the
cornerstone
of any system for the administration of justice.
8.3.6 The rights of the child and disciplinary measures
Recourse to disciplinary measures against juveniles deprived of their liberty is
legitimate for the purpose of maintaining “the interest of safety and an ordered
community life”, but “should be consistent with the upholding of the inherent
dignity
of the juvenile and the fundamental objective of institutional care, namely,
instilling a
sense of justice, self-respect and respect for the basic rights of every person”
(Rule 66 of
the United Nations Rules). According to Rule 67, this means that the following
measures “shall be strictly prohibited”:
_ measures constituting cruel, inhuman or degrading treatment;
_ corporal punishment;
_ placement in a dark cell;
_ closed or solitary confinement;
_ any other punishment that may compromise the physical or mental health of
the
juvenile concerned.
Moreover, the following measures “should” also be prohibited:
_ the reduction of diet and the restriction or denial of contact with family
members
“for any purpose”;
_ labour, since it “should always be viewed as an educational tool and a means
of
promoting the self-respect of the juvenile in preparing him or her for return to
the
community and should not be imposed as a disciplinary sanction”;
_ more than one sanction for the same disciplinary infraction; and
_ collective sanctions.
States should adopt legislation or regulations establishing norms concerning
the following matters, “taking full account of the fundamental characteristics,
needs
and rights of juveniles”: (1) conduct constituting a disciplinary offence; (2) type
and
duration of disciplinary sanctions that may be inflicted; (3) the authority
competent to
impose such sanctions; and (4) the authority competent to consider appeals
(Rule 68).
The juvenile should be disciplined only “in strict accordance with the terms of
the law and regulations in force”, and only after “he or she has been informed of
the
alleged infraction in a manner appropriate to the full understanding of the
juvenile and
given a proper opportunity of presenting his or her defence”. The juvenile should
have
“the right of appeal to a competent impartial authority”, and “complete records
should
be kept of all disciplinary proceedings” (Rule 70).
*****
Lawyers 427
85See as to Benin, in UN doc. CRC/C/87, Report on the twenty-first session (1999), para. 165 (f).
The Committee on the Rights of the Child inter alia recommended that
Grenada prohibit and eradicate the use of corporal punishment such as whipping
in the
juvenile justice system, and it expressed particular concern regarding “the use of
physical punishment, including flogging, and torture in detention centres” in
Yemen.86
It is not clear whether the physical ill-treatment in these cases was imposed for
the
purpose of discipline or as a penal sanction, but in either case the measures
would be
unlawful. The Committee expressed concern, however, about “the recourse to
whipping as a disciplinary measure for boys in Zimbabwe.”87
On the question of corporal punishment see also Chapter 8, sub-section 2.3.3
of this Manual.
The deprivation of liberty of juveniles should be used only as a measure of
last resort, i.e. when no other appropriate measures are available to deal
with the child concerned.
A child deprived of liberty has the right to be treated with humanity in a
manner that takes into account his or her specific needs.
A child deprived of liberty has the right to be separated from adults and,
if not convicted, he or she has the right not to be detained with convicted
persons.
A child deprived of liberty has the right to remain in regular contact with
his or her family, unless such contact would not be in the best interest of
the child.
The child deprived of liberty has the right to prompt access to legal
assistance and to challenge the lawfulness of his or her detention before a
court or other competent, independent and impartial authority.
The child deprived of liberty has the right to conditions of detention that
will promote his or her physical and mental well-being as well as foster
his or her reintegration into society. In this respect, effective access to
continuous education during the deprivation of liberty is a
cornerstone of any system for the administration of justice.
A child deprived of liberty may not be subjected to disciplinary measures
involving either physical chastisement or solitary confinement.
Disciplinary measures must respect the right of the child to his or her
inherent dignity.
86See as to Grenada, in UN doc. CRC/C/94, Report on the twenty-third session (2000), para. 412(b)
(whipping), and as to Yemen, in
UN doc. CRC/C/84, Report on the twentieth session (1999), para. 184 (physical punishment, flogging and
torture in detention centres).
87UN doc. CRC/C/15/Add.55, Concluding Observations: Zimbabwe, para. 21.
9. The Rights of the Child and

Penal Sanctions
International human rights law sets certain limits on the kind of penal
sanctions that can be imposed on a child found guilty of having committed a
criminal
offence. Article 37(a) of the Convention on the Rights of the Child stipulates, for
instance, that “neither capital punishment nor life imprisonment without
possibility of
release shall be imposed for offences committed by persons below eighteen
years of
age”.
As to capital punishment, article 6(5) of the International Covenant on Civil
and Political Rights outlaws its imposition “for crimes committed by persons
below
eighteen years of age”. At the regional level, article 4(5) of the American
Convention on
Human Rights inter alia forbids capital punishment “upon persons who, at the
time the
crime was committed, were under 18 years of age”.
With regard to the prohibition of life sentences without the possibility of
release, this is a principle which is fully logical given that, under article 37(b) of
the
Convention on the Rights of the Child, the detention or imprisonment of a child
“shall
be used only as ameasure of last resort and for the shortest appropriate period
of time”.
A life sentence would ipso facto be contrary to this rule and also to the notion of
the
bests interest of the child, which implies that a child shall be given a chance of
psychological recovery for the purposes of social reintegration (cf. inter alia art.
39 of
the Convention on the Rights of the Child). Consistent with the rule that
imprisonment
of a child shall be only for the shortest possible time, the Committee on the
Rights of
the Child expressed concern with regard to Zimbabwe about “the lack of a clear
legal
prohibition of life imprisonment without possibility of release and indeterminate
sentencing”.88
Similarly, the Committee has expressed concern where the possibility of
imposing the death penalty has not been expressly prohibited by law,89 and
where the
law allows for young persons between 16 and 18 years of age “to be tried as
adults and
thereby face the imposition of a death sentence or a sentence of life
imprisonment”.90
Further, in respect of China, where the national legislation permits the imposition
of a
two-year suspension of death sentences on persons aged 16 to 18, the
Committee is of
the opinion that such sentencing of children “constitutes cruel, inhuman or
degrading
treatment or punishment”.91 The Committee was also “deeply concerned” about
the
fact that in Guatemala the national legislation prohibited neither capital
punishment
nor life imprisonment without the possibility of release.92
Lawyers 429
88Ibid., loc. cit.
89Ibid.
90UN doc. CRC/C/15/Add.38, Concluding Observations: Belgium, para. 11.
91UN doc. CRC/C/15/Add.56, Concluding Observations: China, para. 21.
92UN doc. CRC/C/15/Add.58, Concluding Observations: Guatemala, para. 15.
As pointed out in the preceding section, corporal punishment such as
whipping and flogging is also prohibited inter alia under the Convention on the
Rights
of the Child and the International Covenant on Civil and Political Rights. It will
further
be recalled that, in the Tyrer case, the European Court of Human Rights ruled
that the
corporal punishment – consisting of three strokes with a cane – imposed by a
juvenile
court in the Isle of Man, constituted degrading treatment within the meaning of
article 3
of the European Convention on Human Rights (cf. Chapter 8, subsection 2.3.3).
International human rights law prohibits the imposition of capital
punishment for crimes committed by persons below the age of eighteen.
Life imprisonment without the possibility of release may not be imposed
on persons below eighteen years of age.
Corporal punishment is contrary to international human rights law.
10. The Accused Child and the
Question of Diversion
10.1 The meaning of the term “diversion”
As explained in the Commentary to Rule 11 of the Beijing Rules, the term
diversion means “removal from criminal justice processing and, frequently,
redirection to community support services” and “is commonly practised on a
formal
and informal basis in many legal systems. This practice serves to hinder the
negative
effects of subsequent proceedings in juvenile justice administration (for example
the
stigma of conviction and sentence)”.93
The question of diversion is dealt with in article 40(3)(b) of the Convention on
the Rights of the Child, which reads as follows:
“3. States Parties shall seek to promote the establishment of laws,
procedures, authorities and institutions specifically applicable to children
alleged as, accused of, or recognized as having infringed the penal law, and,
in particular:
...
(b) Whenever appropriate and desirable, measures for dealing with such
children without resorting to judicial proceedings, providing that human
rights and legal safeguards are fully respected.”
93Human Rights – A Compilation of International Instruments, pp. 364-365.
This alternative approach is confirmed in Rule 11(1) of the Beijing Rules,
according to which “consideration shall be given, wherever appropriate, to
dealing with
juvenile offenders without resorting to formal trial by the competent authority...”.
The
Commentary to this Rule explains that “in many cases, non-intervention would
be the
best response”, that is to say, “diversion at the outset and without referral to
alternative
(social) services”.94 This is in particular the case “where the offence is of a non-
serious
nature and where the family, the school or other informal social control
institutions
have already reacted, or are likely to react, in an appropriate and constructive
manner”.95
Article 40(4) of the Convention on the Rights of the Child gives some other
examples of non-institutional measures that “shall be available to ensure that
children
are dealt with in a manner appropriate to their well-being and proportionate both
to
their circumstances and the offence”. In addition to the non-interventionist
approach
which may be the most appropriate alternative in many situations, the following
measures, among others, should be envisaged instead of criminal proceedings,
which
should always be used only as a last resort:
_ care;
_ guidance and supervision orders;
_ counselling;
_ probation;
_ foster care;
_ education and vocational training programmes.
On the issue of viable diversionary measures, Rule 11.4 of the Beijing Rules
emphasizes the importance of community-based alternatives to juvenile justice
processing, by stipulating that “in order to facilitate the discretionary disposition
of
juvenile cases, efforts shall be made to provide for community programmes,
such as
temporary supervision and guidance, restitution, and compensation of victims”.
As
noted in the Commentary to this provision, “programmes that involve settlement
by
victim restitution and those that seek to avoid future conflict with the law
through
temporary supervision and guidance are especially commended. The merits of
individual cases would make diversion appropriate, even when more serious
offences
have been committed”, such as, for instance, in the case of a first offence or
when the
juvenile has committed an unlawful act under peer pressure.96
10.2 Diversion and the responsible authorities
According to Rule 11(2) of the Beijing Rules, “the police, prosecution or other
agencies dealing with juvenile cases shall be empowered to dispose of such
cases, at
their discretion, without recourse to formal hearings, in accordance with the
criteria laid
down for that purpose in the respective legal system and also in accordance with
the
principles contained in these Rules”. This means that “diversion may be used at
any
Lawyers 431
94Ibid., p. 365.
95Ibid., loc. cit.
96Ibid.
point of decision-making” by the responsible authorities, and may be exercised
by one,
several or all of them.97 Moreover, recourse to diversion in relation to juveniles
“need
not necessarily be limited to petty cases, thus rendering diversion an important
instrument” in dealing with juveniles in trouble with the law.98
10.3 Diversion and consent of the child
Rule 11.3 of the Beijing Rules requires the consent of the juvenile, or her or his
parents or guardian before referring the juvenile to appropriate community or
other
services; a decision to resort to diversion shall however “be subject to review by
a
competent authority, upon application”. The Commentary underlines the
importance of
securing the consent of the young offender or his or her parent or guardian to
the
recommended diversionary measure or measures, one reason being that
diversion to
community service without such consent would contradict the ILO Abolition of
Forced Labour Convention.99 The consent of the person concerned by the
diversionary
measure is of course also essential for its success.
Such consent should not however be left unchallengeable, since, as noted in
the Commentary, “it might sometimes be given out of sheer desperation on the
part of
the juvenile”.100 The idea behind the Rule is, in other words, that “care should be
taken
to minimize the potential for coercion and intimidation at all levels in the
diversion
process. Juveniles should not feel pressured (for example in order to avoid court
appearance) or be pressured into consenting to diversion programmes.”101
When considering the reports of the States parties to the Convention on the
Rights of the Child, the Committee on the Rights of the Child consistently
examines
what alternatives to deprivation of liberty exist in the country concerned to deal
with
juvenile offenders, and it has repeatedly called for the strengthening of such
measures.102
Whenever appropriate and desirable, juvenile offenders shall be diverted
away from the ordinary criminal proceedings towards alternative services
and care.
Such diversionary measures can be taken by the competent authorities at
any stage of the decision-making.
The juvenile concerned, or her or his parents or guardian, shall consent to
the diversion and may bring an appeal to the competent authority in case
of disagreement.
97Ibid.
98Ibid.
99Ibid.
100Ibid.
101Ibid.
102See as to Honduras, in UN doc. CRC/C/87, Report on the twenty-first session (1999), para. 130; as to
Kuwait, in UN doc.
CRC/C/80, Report on the nineteenth session (1998), para. 150; and as to Peru, in UN doc. CRC/C/94, Report
on the twenty-third session
(2000), para. 381.
11. The Child as Victim or Witness

in Judicial Proceedings
The appearance of a child as a victim or witness in judicial proceedings causes
special problems since he or she is at a sensitive age when contact with the
justice
system might be deeply traumatic. Yet in spite of the negative impact that
criminal
proceedings can have on child victims or witnesses, this serious question has
only
recently been accorded attention at the international level, for example in the
Guidelines for Action on Children in the Criminal Justice System, annexed to
Economic and Social Council resolution 1997/30, on Administration of juvenile
justice
(hereinafter referred as the “Guidelines”). Although not legally binding on States,
these
Guidelines provide some useful principles which should inspire the work of
police,
prosecutors, lawyers and judges at the domestic level.
Basing itself on the Declaration of Basic Principles of Justice for Victims of
Crime and Abuse of Power, which will be further considered in Chapter 15 of this
Manual, paragraph 43 of the Guidelines stipulates that “States should undertake
to
ensure that child victims and witnesses are provided with appropriate access to
justice
and fair treatment, restitution, compensation and social assistance. If applicable,
measures should be taken to prevent the settling of penal matters through
compensation outside the justice system, when doing so is not in the interests of
the
child”.
As regards child victims, more specifically, paragraph 45 of the Guidelines
provides that they “should be treated with compassion and respect for their
dignity.
They are entitled to access to the mechanisms of justice and to prompt redress,
as
provided for by national legislation, for the harm they have suffered”. Child
victims
should further “have access to assistance that meets their needs, such as
advocacy,
protection, economic assistance, counselling, health and social services, social
reintegration and physical and psychological recovery services. Special
assistance
should be given to those children who are disabled or ill. Emphasis should be
placed
upon family- and community-based rehabilitation rather than institutionalization”
(para. 46).
Furthermore, “judicial and administrative mechanisms should be established
and strengthened where necessary to enable child victims to obtain redress
through
formal or informal procedures that are prompt, fair and accessible. Child victims
and/or their legal representatives should be informed accordingly” (para.47). The
competent authorities thus have a positive duty to provide the necessary
information to
the victims.
According to paragraph 48 of the Guidelines, “access should” (emphasis
added) also “be allowed to fair and adequate compensation for all child victims
of
violations of human rights, specifically torture and other cruel, inhuman or
degrading
treatment or punishment, including rape and sexual abuse, unlawful or arbitrary
deprivation or liberty, unjustifiable detention and miscarriage of justice.
Necessary legal
representation to bring an action within an appropriate court or tribunal, as well
as
interpretation into the native language of the child, if necessary, should be
available.”
Lawyers 433
It is noteworthy that the wording of this paragraph is weaker than that
contained in the legally binding human rights treaties, all of which
grant the
right to an effective remedy to victims of human rights violations. That
right is,
of course, equally applicable to children who are victims of such
violations. For
further details on this right, see Chapter 15 of this Manual.
In order to be able to deal with cases involving child victims, “police, lawyers,
the judiciary and other court personnel should receive training”, a need that is
recognized in paragraph 44 of the Guidelines. In addition, according to the same
provision, “States should consider establishing, if they have not yet done so,
specialized
offices and units to deal with cases involving offences against children”. Lastly,
“States
should establish, as appropriate, a code of practice for proper management of
cases
involving child victims”.
With regard to child witnesses, paragraph 49 of the Guidelines states that
they “need assistance in the judicial and administrative process”. Consequently,
“States
should review, evaluate and improve, as necessary, the situation for children as
witnesses of crime in their evidential and procedural law to ensure that the rights
of
children are fully protected. In accordance with the different law traditions,
practices
and legal framework, direct contact should be avoided between the child victim
and the
offender during the process of investigation and prosecution as well as during
trial
hearings as much as possible. The identification of the child victim in the media
should
be prohibited, where necessary to protect the privacy of the child. Where
prohibition is
contrary to the fundamental legal principles of Member States, such
identification
should be discouraged.”
According to paragraph 50 of the Guidelines, States should also consider, “if
necessary, amendments of their penal procedural codes to allow for, inter alia,
videotaping of the child’s testimony and presentation of the videotaped
testimony in
court as an official piece of evidence. In particular, police, prosecutors, judges
and
magistrates should apply more child-friendly practices, for example, in police
operations and interviews of child witnesses”.
Lastly, paragraph 51 provides that “the responsiveness of judicial and
administrative processes to the needs of child victims and witnesses should be
facilitated by:
(a) Informing child victims of their role and the scope, timing and
progress of the proceedings and of the disposition of their cases, especially
where serious crimes are involved;
(b) Encouraging the development of child witness preparation schemes
to familiarize children with the criminal justice process prior to giving
evidence. Appropriate assistance should be provided to child victims and
witnesses throughout the legal process;
(c) Allowing the views and concerns of child victims to be presented
and considered at appropriate stages of the proceedings where their
personal interests are affected, without prejudice to the accused and in
accordance with the relevant national criminal justice system;
(d) Taking measures to minimize delays in the criminal justice system,
protecting the privacy of child victims and witnesses and, when necessary,
ensuring their safety from intimidation and retaliation.”
Given the increasing number of children who appear in court proceedings as
victims and witnesses, in particular in cases of abuse, it is of primordial
importance that
members of the legal professions focus on ways and means of respecting these
children’s rights and needs, while at the same time also respecting the rights
and needs
of the accused, who must be granted due process.
It is important to bear in mind that the appearance of a child as victim
or witness in criminal proceedings may have a traumatizing effect. It is
therefore the duty of the members of the legal profession to respect the
rights and needs of the child and to treat him or her with understanding
and sympathy.
Child victims are entitled to prompt redress for the harm suffered
and, to this end, they have the right of access to various kinds of
assistance to meet their needs during the legal proceedings and
thereafter.
Child victims should be able to obtain redress through formal or informal
procedures that are prompt, fair and accessible, and they and/or their
legal representatives should be informed about the availability of such
procedures.
Children who are victims of human rights violations have a right under
international human rights law to an effective remedy for the harm
suffered.
Child witnesses need special assistance in the judicial and
administrative process and the members of the legal profession must
ensure that their rights are fully protected.
The police, prosecutors, magistrates and judges should endeavour to
apply
more child-friendly practices in their work with child witnesses.
Both child victims and witnesses need special assistance throughout the
legal proceedings in which they are involved.
Lawyers 435
12. The Child and His or Her
Parents: When Separation May
be Justified
Judges and lawyers may have to deal with children not only in the
administration of criminal justice and diversionary proceedings, but also in
connection
with proceedings concerning the separation of a child from its parents and
adoption,
the latter question being briefly considered in the next section.
Article 9 of the Convention on the Rights of the Child provides for the
exceptional separation of children from their parents in the following words:
“1. States Parties shall ensure that a child shall not be separated from his
or her parents against their will, except when competent authorities subject
to judicial review determine, in accordance with applicable law and
procedures, that such separation is necessary for the best interests of the
child. Such determination may be necessary in a particular case such as one
involving abuse or neglect of the child by the parents, or one where the
parents are living separately and a decision must be made as to the child’s
place of residence.”
12.1 The best interests of the child
Given the child-oriented approach adopted by the Convention, it is logical
that the basic principle flowing from this provision is that the separation must be
“necessary for the best interests of the child”. It is noteworthy, however, that the
words
“against their will” refer “either to the parents’ will or to the parents’ and the
child’s will
together”, but clearly do not mean only the child’s will.103 This is a plausible
interpretation given that children are not able to choose their caregivers, but
“are
dependent on their family, community and the State to make that choice for
them”.104
12.2 The grounds justifying separation
Article 9(1) expressly refers to parental “abuse or neglect of the child” as a first
ground that might justify the separation of a child from his or her parents; as a
second
ground it mentions the situation where parents are living apart and a decision
must be
made as to where the child should live. However, as indicated by the words
“such as”,
these possible grounds of separation are illustrative and not exhaustive, and
there may
be other situations in which domestic judges could be called upon to settle
residential
disputes, for instance, if the parents have themselves agreed where the child
should live,
but the child itself is unhappy with the agreement.105 In such cases States might
have an
important role to fulfil as arbitrator in order to solve the dispute between the
child and
104Ibid., loc. cit.
105Ibid.
his or her parents, if only by “establishing judicial machinery for the child to
make a case
for arbitration”.106
12.3 The legal safeguards
Article 9 refers to three legal safeguards aimed at providing protection against
abuses and which will ensure fairness of the proceedings. Consequently, the
decision to
separate a child from his or her parents must:
_ be taken by “competent authorities” applying existing law and procedures (art.
9(1));
_ be subject to judicial review to determine the lawfulness thereof (art. 9(1)); and
_ be taken only after all interested parties have had “an opportunity to
participate in
the proceedings and make their views known” (art. 9(2)).
The notion of competent authorities means in this context organs having
both the legal authority to determine whether a separation is in the best
interests of the
child and the necessary skills to do so.107
The requirement that the decision on separation must be taken in
accordance with applicable law and procedures means that States must
legislate in
this area in order carefully to define the grounds and circumstances that may
justify
such a drastic measure. However, since no law can be so precise as to provide
guidance
sufficiently detailed to foresee the wide range of individual situations which may
necessitate intervention, the competent authorities and the courts may need a
certain
degree of discretion allowing social workers, judges and lawyers to seek
alternatives
conforming to the best interests of the child.
Laws on separation must not be discriminatory and must not be applied
in a discriminatory manner (cf. art. 2 of the Convention); consequently,
homelessness, poverty or ethnic origin must not per se be grounds for removing
a child
from his or her parents.108 The Committee on the Rights of the Child expressed
concern with regard to Croatia that “children might be removed from their
families
because of their health status or the difficult economic situation faced by their
parents”.109 With regard to the United Kingdom, it expressed concern that
“children of
certain ethnic minorities appear to be more likely to be placed in care”.110 When
examining the report of Belgium, the Committee pointed out that “children
belonging
to the disadvantaged groups of the population appear more likely to be placed in
care”,
and it recalled in this regard “the importance of the family in the upbringing of a
child”,
emphasizing its view “that the separation of the child from his or her family must
take
the child’s best interest as a primary consideration”.111
Lawyers 437
106Ibid.
107Ibid., p. 124.
108Ibid., p. 125.
109UN doc. CRC/C/15/Add.52, Concluding Observations: Croatia, para. 17.
110UN doc. CRC/C/15/Add.34, Concluding Observations: United Kingdom, para. 12.
111UN doc. CRC/C/15/Add.38, Concluding Observations: Belgium, para. 10
The requirement of judicial review of the decision taken by the competent
authority in turn ensures a determination of its lawfulness, on the basis of
existing law
and procedure, by an independent and impartial body applying due process
guarantees
and rendering a reasoned decision. Such review should include an examination
of any
discretion that the competent authorities may have had in deciding on the
question of
separation so as to ensure that the discretion has been applied carefully, in the
best
interests of the child.
Article 9(2) of the Convention adds an additional guarantee to the fairness of
the proceedings relating to separation in that “all interested parties shall be
given an
opportunity to participate in the proceedings and make their views known”
(emphasis
added). The words “interested parties” are not defined in the Convention but
include,
in the first place, the child himself or herself. This follows from a reading of
article 9(2)
in the light of article 12(2) of the Convention, according to which “the child shall
in
particular be provided the opportunity to be heard in any judicial and
administrative
proceedings affecting the child, either directly, or through a representative or an
appropriate body, in a manner consistent with the procedural rules of national
law”.
The views of the child shall be “given due weight in accordance with the age and
maturity of the child” (art.12(1)). Furthermore, the reference to “interested”
parties
also means that both parents must be heard although they may not live
together; other
members of the child’s extended family might also have a right to be heard on
the basis
of this provision, as well as “professionals with a specialist knowledge of the
child”.112
12.4 The child’s right to remain in contact with his or
her parents
Article 9(3) of the Convention provides that “States Parties shall respect the
right of the child who is separated from one or both parents to maintain personal
relations and direct contact with both parents on a regular basis, except if it is
contrary
to the child’s best interests” (emphasis added). The stress here is on the child’s
right to
remain in contact with both parents, and not on the parents’ right to maintain
contact
with their child. It enables a child to stay in touch not only with the residential
parent
but also with the non-residential father or mother.113
A child may in exceptional situations be separated from his or her
parents, provided that this is in the child’s best interests. Situations that
may justify such separation are, in particular, abuse or neglect.
Laws on separation must not be discriminatory and must not be applied
in a discriminatory manner. Homelessness, poverty or ethnic origin, for
instance, must not per se be grounds for removing a child from his or
her parents.
113Ibid., p. 127. As to the rights of children, parents and other family members to receive “essential
information” concerning the
whereabouts of a parent or child, see also article 9(4) of the Convention and Implementation Handbook, p.
127.
The decision on separation must be taken by a competent authority acting
in accordance with law and it must be subject to judicial review. A
decision to separate a child from his or her parents shall be taken only
after all interested parties have been able to take part in the proceedings
and make their views known.
A child separated from his or her parents has a right to maintain regular
contact with them, unless it would not be in the child’s best interests to do
so.
13. The Rights of the Child and
Adoption Proceedings
The final area to be dealt with in this chapter where judges and lawyers will be
called upon to intervene is that of adoption.114 Article 21 of the Convention on
the
Rights of the Child provides some basic rules, which are applicable to “States
Parties
that recognize and/or permit the system of adoption”.115 Article 20 mentions
adoption
as one of several ways of caring for children deprived of a family environment,
but the
Convention, as such, does not take a position on the desirability of adoption.
However,
wherever it exists, adoption shall be regulated by domestic law, which must give
paramount consideration to the best interests of the child, to the exclusion of
other
interests such as economic gain.116 The legislation on adoption must also respect
the
following minimum rules :
First, it must “ensure that the adoption of a child is authorized only by
competent authorities who determine, in accordance with applicable law and
procedures and on the basis of all pertinent and reliable information, that the
adoption
is permissible in view of the child’s status concerning parents, relatives and legal
guardians and that, if required, the persons concerned have given their informed
consent to the adoption on the basis of such counselling as may be necessary”
(art.
21(a)).
As to the notion of competent authorities, this covers both judicial and
professional authorities who are qualified to decide what is in the best interest of
the
child and ensure that proper consent has been given;117 as recommended by the
Committee on the Rights of the Child with regard to Panama, adequate training
should
be provided to the professionals concerned.118
Lawyers 439
114This section will be exclusively based on the Convention on the Rights of the Child and will leave aside
other international
treaties dealing with the question of adoption.
115States applying Islamic law, for instance, do not recognize adoption: Implementation Handbook, p. 271.
116On the notion of best interests in connection with adoption, see Implementation Handbook, p. 272.
117Ibid., p. 273.
118UN doc. CRC/C/15/Add.68, Concluding Observations: Panama, para. 31.
The requirement that an adoption must be based on the informed consent of
the persons concerned was inserted in order to prevent children from being
“wrongfully removed from their parents”, although the Convention leaves it to
each
State party to include this requirement or not in its domestic legislation.119
Notwithstanding the failure of domestic law to contain a proper consent clause, a
lack
of informed consent to an adoption might in any event violate the right of both
the
child and his or her natural parents as guaranteed by in particular articles 7 and
9 of the
Convention, which are based on the presumption “that children’s best interests
are
served by being with their parents wherever possible”.120 As to the views of the
child
itself, they are, as previously mentioned, required under article 12 of the
Convention
and must be considered essential also in connection with adoption procedures
envisaged under article 21.121 It is worthy of note that some countries require the
child’s
own consent to adoption as from a certain age: in Mongolia, the agreement of
the child
has to be secured if he or she is nine years old or more;122 in the Canadian
province of
Nova Scotia the law provides that in situations where the person proposed to be
adopted is twelve years of age or more, “written consent must be obtained”,123
and in
Croatia “the attitude of the child over 10 is relevant with respect to his or her
agreeing
to adoption”.124 The Committee on the Rights of the Child has recommended that
States parties ensure that their domestic legislation is in conformity in particular
with
articles 3, 12 and 21 of the Convention125 and that, accordingly, children be
granted
broadened involvement in family decisions affecting them, including in
proceedings
relating to family reunification and adoption.126
Second, article 21(b) recognizes that “inter-country adoption may be
considered as an alternative means of child’s care, if the child cannot be placed
in a
foster or an adoptive family or cannot in any suitable manner be cared for in the
child’s
country of origin”. As indicated by the Committee on the Rights of the Child in its
recommendations to Mexico, inter-country adoptions should be seen as a
measure of
last resort to provide care for a child,127 and the States parties are not,
consequently,
obliged to permit such adoptions. The Committee has on various occasions
expressed
its concern about the lack of a normative framework or sufficiency of measures
to
implement the provisions of the Convention concerning adoption in general and
in
particular in the field of inter-country adoptions and the consequential risk of
illegal
inter-country adoptions and trafficking in children.128 With regard to Denmark
and
120Ibid., loc. cit.
121Ibid.
122UN doc. CRC/C/3/Add.32, Initial reports of States parties due in 1992: Mongolia, para. 136.
123UN doc. CRC/C/11/Add.3, Initial reports of States parties due in 1994: Canada, para. 1129.
124UN doc. CRC/C/8/Add.19, Initial reports of States parties due in 1993: Croatia, para. 103.
125UN doc. CRC/C/15/Add.43, Concluding Observations: Germany, para. 29; and UN doc. CRC/C/15/Add.24,
Concluding
Observations: Honduras, para. 26.
126UN doc. CRC/C/15/Add.43, Concluding Observations: Germany, para. 29
127UN doc. CRC/C/15/Add.13, Concluding Observations: Mexico, para. 18.
128See e.g. UN doc. CRC/C/15/Add.27, Concluding Observations: Paraguay, para. 11; UN doc.
CRC/C/15/Add.36, Concluding
Observations: Nicaragua, para. 18; and UN doc. CRC/C/15/Add.42, Concluding Observations: Ukraine, para.
11.
Sweden the Committee also recommended that steps be taken to monitor the
situation
of foreign children adopted by families in these countries.129
Third, the States parties shall “ensure that the child concerned by
inter-country adoption enjoys safeguards and standards equivalent to those
existing in
the case of national adoption”. This means that “every international adoption
must be
authorized as being in the best interests of the child by competent authorities of
the
child’s State, on the basis of proper investigation and information and with
proper
consents (with counselling, if necessary) having been obtained” (cf. art.
21(a)).130 The
Committee on the Rights of the Child has recommended in this respect that the
States
parties consider ratifying the Hague Convention on Protection of Children and
Co-operation in respect of Intercountry Adoption, 1993, which lays down details
on
this subject.131
Fourth, the States parties shall “take all appropriate measures to ensure that,
in inter-country adoption, the placement does not result in improper financial
gain for
those involved in it” (art. 21(d)). This provision is aimed at preventing “the sale
of or
traffic in children for any purpose or in any form”, as required by article 35 of the
Convention on the Rights of the Child. It is evident that, while “payments by
adoptive
couples may be made in good faith and without harm to the child, a system that
puts a
price on a child’s head is likely to encourage criminality, corruption and
exploitation”.132
Finally, the States parties recognizing or permitting adoption shall “promote,
where appropriate, the objectives of [article 21 of the Convention] by concluding
bilateral or multilateral arrangements or agreements, and endeavour, within this
framework, to ensure that the placement of the child in another country is
carried out
by competent authorities or organs” (art. 21(e)). The principal treaty to be
considered in
this respect is the aforementioned Hague Convention on Protection of Children
and
Co-operation in respect of Intercountry Adoption, which is based on article 21 of
the
Convention on the Rights of the Child as well as the 1986 United Nations
Declaration
on Social and Legal Principles relating to the Protection and Welfare of Children,
with
Special Reference to Foster Placement and Adoption Nationally and
Internationally.133
It is recalled that the Committee on the Rights of the Child consistently
encourages
those countries that have not yet ratified the Hague Convention to do so.
Lawyers 441
129UN doc. CRC/C/15/Add.33, Concluding Observations: Denmark, para. 27; and UN doc. CRC/C/15/Add.2,
Concluding
Observations: Sweden, para. 13.
131UN doc. CRC/C/15/Add.68, Concluding Observations: Panama, para. 31; and UN doc. CRC/C/15/Add.33,
Concluding
Observations: Denmark, para. 27. For more information about the Hague Convention, see “Proceedings”, a
CD published by the Hague
Conference on Private International Law, on the children’s conventions concerning child abduction, adoption
co-operation and
protection of children. The text of the Convention can also be found at http://www.hcch.net.
132Implementation Handbook, pp. 275-276.
133Ibid., p. 276.
For States that recognize or permit adoptions, paramount consideration
shall be given to the best interests of the child.
The domestic legislation on adoption must also ensure that the adoption
of a child is authorized only:
_ by competent authorities who determine the permissibility of the
adoption;
_ in accordance with applicable law and procedures and on the basis of
all pertinent and reliable information;
_ and after having obtained, if required by the law, the informed consent
to the adoption of the persons concerned.
International or inter-country adoptions are considered to be a measure of
last resort to provide care for a child.
A child concerned by inter-country adoptions has the right to enjoy
safeguards and standards equivalent to those existing in the case of
national adoption.
States must take all appropriate measures to ensure that inter-country
adoptions do not result in improper financial gain for those involved in
them.
The sale of, or trafficking in, children for any purpose or in any form is
strictly prohibited by international law.
and Lawyers in Guaranteeing
the Rights of the Child in the
Course of the Administration of
Justice
As seen throughout Chapters 4 to 8 of this Manual, the role of judges,
prosecutors and lawyers is essential for the protection of the human rights of all
persons suspected or accused of having committed criminal offences. The
responsibility of these legal professions is particularly great when the judicial
proceedings concern children under age, who are in trouble with the law or
involved in
separation or adoption proceedings. Such proceedings require special knowledge
and
skills on the part of judges, prosecutors, lawyers and other professionals
concerned,
and the Committee on the Rights of the Child has therefore often recommended
that
States parties introduce or strengthen training programmes on relevant
international
standards for all professionals involved in the juvenile justice system.134 It has
also
consistently suggested that the States parties consider seeking technical
assistance in the
134See as to Venezuela, in UN doc. CRC/C/90, Report on the twenty-second session (1999), para. 61, and as
to Mexico, ibid., para. 192.
area of juvenile justice, including the police, from the Office of the United Nations
High Commissioner for Human Rights and the United Nations Children’s Fund
(UNICEF), among other organizations.135
The present chapter has provided a survey of some of the important
international legal principles relevant to the rights of the child in the
administration of
justice. This legal system takes as its point of departure the fact that children are
persons
in their own right and possess rights and obligations which have to be considered
and
respected by both administrative and judicial authorities. Furthermore, children
have
special rights, needs and interests which must be considered. The administration
of
justice, whether criminal or otherwise, must also at all times be guided, inter
alia, by the
overriding principles of non-discrimination, the best interests of the child, the
child’s
right to life and development and its right to be heard.
However, in order to make these principles a reality for the children of the
world, States must incorporate all relevant international rules into their own
domestic
legal systems, as well as providing proper training and financial means to the
legal
professions, police and social authorities, enabling them to acquire the necessary
knowledge and skills to carry out their duties in conformity with States’ legal
undertakings.
Furthermore, more generally, States have to do their utmost to eradicate
poverty, social injustice and widespread unemployment, failing which even the
best of
intentions with regard to social reeducation and reintegration of juvenile
delinquents
may be of little real help.
Without such wholehearted and concerted efforts on the part of humankind,
which “owes to the child the best it has to give”,136 the problems confronting the
world’s growing population of children may pose well-nigh insurmountable
challenges.
Lawyers 443
135See references in preceding note.
136Fifth preambular paragraph of the Declaration of the Rights of the Child.
.........Chapter 11
WOMEN’S RIGHTS IN
THE ADMINISTRATION
OF JUSTICE...........................
Learning Objectives
_ To sensitize the participants to the specific human rights problems faced
by women in
different spheres of life
_ To familiarize the participants with existing international legal rules
designed to
protect the rights of women
_ To increase the participants’ awareness of their own potential as judges,
prosecutors
and lawyers to contribute to improved protection of the rights of women
Questions
_ How are the rights of women protected by legislation in the country in
which you
work?
_ In your view, is this legislation efficiently enforced?
_ What are the specific problems facing women in the country in which you
work?
_ Are these problems due to shortcomings in the de jure protection of
women or to a
failure to enforce existing legal rules?
_ Are there any other factors that might account for the problems facing
women in the
country in which you work?
_ If so, what are they?
_ Does the girl child face any specific problems in the country in which you
work?
_ If so, what are these problems and what may be their root cause?
_ How, and to what extent, does the law deal with the specific problems of
the girl
child?
_ What can you do as judges, prosecutors and lawyers to improve the
protection of the
rights of women in the country in which you work?
Lawyers 445

_ Charter of the United Nations, 1945
_ International Covenant on Economic, Social and Cultural Rights, 1966
_ Convention for the Suppression of the Traffic in Persons and of the
Exploitation of the Prostitution of Others, 1949
_ Convention on the Political Rights of Women, 1953
_ Convention on the Nationality of Married Women, 1957
_ Convention on Consent to Marriage, Minimum Age for Marriage and
Registration of Marriages, 1962
_ Optional Protocol to the Convention on the Rights of the Child on the
Sale of Children, Child Prostitution and Child Pornography, 2000
_ Convention on the Elimination of All Forms of Discrimination against
Women, 1979
_ Optional Protocol to the Convention on the Elimination of All Forms
of Discrimination against Women, 1999
_ UNESCO Convention against Discrimination in Education, 1960
_ Rome Statute of the International Criminal Court, 1998
_ United Nations Convention against Transnational Organized Crime,
2000
_ Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime, 2000
*****
_ Statute of the International Tribunal for the Former Yugoslavia, 1993
_ Statute of the International Tribunal for Rwanda, 1994
*****
_ Declaration on the Elimination of Violence against Women, 1993
_ Vienna Declaration and Programme of Action, 1993
_ Beijing Declaration and Platform for Action, 1995
_ Inter-American Convention on the Prevention, Punishment and
Eradication of Violence against Women, 1994
Chapter 11 • Women’s Rights in the Administration of Justice
1. Introduction
International human rights law as a whole is, of course, fully applicable to
women. The rights described in other chapters of this Manual are therefore
equally
relevant to women and the female juvenile. However, as evidenced by the above
list of
treaties and declarations, it has been considered necessary, in order to deal
more
efficiently with the serious and multiple violations of the rights of women that
still exist
in the majority of countries, including widespread discriminatory practices, to
draw up
separate gender-specific legal documents focusing on the particular needs of
women.
While women in some countries have made great strides towards securing
increased
respect for their human rights, including the right to equality with men, in areas
such as
family law and the law of succession and in access to education, adequate health
care
and the labour market, the majority of women still suffer violations of their most
basic
human rights. For instance, they are not always allowed to enter freely into
marriage or
to divorce on the same conditions as men, and in some countries they do not
enjoy
equal rights with men in terms of succession. Women’s right to life, personal
liberty and
security, including the right to health, are also frequently violated through
domestic,
institutional and community violence such as dowry killings, “honour” killings,
battering, sexual violence, traditional practices, trafficking and forced
prostitution.
Further, women may be denied the right to education or even to the most basic
health
care services. They may also be subject to strict dress codes, the violation of
which can
result in severe corporal punishment. Discrimination against the female gender
sometimes occurs even before birth in the form of selective pre-natal testing
that may
lead to abortion of the female foetus.
The seriousness of these violations is compounded by the fact that many of
the victims are living in poverty or extreme poverty and lack the financial means
to alter
their situation. They cannot afford to hire a lawyer, for instance, to help them
vindicate
their rights, and even if they could, the legal system may often be such that
women’s
rights are not given the same weight as the rights of men or the rights of the
affluent
strata of society. The legal system may be unfairly biased in favour of men so
that a
woman has an unduly heavy burden of proof to bear in cases of violence,
including
rape. Further, lawyers representing women are sometimes threatened in various
ways,
even with murder.
The legal and factual situation of women is also in many cases particularly
precarious owing to their status as migrants, refugees or displaced persons, or
simply
because they are part of an ethnic or racial minority. Governments and members
of the
legal professions therefore have a duty to be alert to such problems and to
identify
possible solutions.
Reluctance and failure to promote and protect women’s rights effectively can
often be explained – though not justified – by the fear that such rights constitute
a
threat to accepted societal values and interests.1 But this marginalization of
women has
a devastating human, social and financial cost that goes far beyond the life of
the
Lawyers 447
1On this issue, see the United Nations Development Programme’s Human Development Report 2000 (New
York/Oxford, Oxford
University Press, 2000), p. 30.
individual women concerned; it affects society as a whole, since women are
excluded
from the decision-making process that would have enabled them to play a
constructive
role in building a community free from fear, want and intolerance.
Women living in industrialized countries are by no means immune to
violations of their rights. They may have to contend with a variety of systemic
and
attitudinal problems and may suffer discrimination, which is often, however,
more
indirect than direct.
*****
Women are thus frequently caught up in a vicious social, cultural, religious,
political and legal circle and may be unable to break out of it alone. To do so,
they need,
inter alia, the support of independent and impartial legal professions that are
familiar
with international human rights law and its application to women, and are
capable of
exercising their responsibilities diligently and fearlessly. Enhancement of
awareness
among judges, prosecutors and lawyers of acts and practices that violate the
most
fundamental rights of women and girls constitutes an important step towards
providing
half of humanity with an acutely needed remedy and a means of redress.
*****
The problems involved in promoting and protecting women’s rights are too
varied and numerous to be dealt with in depth in this chapter, which will confine
itself
to highlighting some of the most serious quandaries facing women and the
response
provided by international law. It will begin with a general description of women’s
right
to legal personality and move on to consider women’s right to equality before
the law
and equal protection of the law. The subsequent sections will deal with women’s
right
to respect for their life and their physical and mental integrity; women’s right to
freedom from slavery, the slave trade, forced and compulsory labour, and
trafficking;
and women’s right to equality in respect of marriage, in civil matters and in
terms of
participation in public affairs. After touching on various other fields of law where
gender discrimination is commonplace, the chapter will briefly describe women’s
right
to an effective remedy, including their right of access to the courts. Lastly, the
role of
the legal professional in promoting and protecting the rights of women will be
emphasized, and the chapter will close with some concluding remarks. Whenever
relevant, reference will be made to gender issues dealt with in other chapters of
the
Manual.
*****
Albeit equally important, women’s rights in the areas of employment and
health and other rights pertaining to the social, economic or cultural fields will
not, for
reasons of space, be considered in this context, although some pertinent
references will
be made. Instead, Handout No. 1 will provide a short list of relevant legal
documents.
For further resource material on the rights of women, see Handout No. 2, which
contains a list of useful books, reports and web sites.
2. Women’s Right to Legal

Personality
The right to recognition as a person before the law lays the basis for the right
of women to enjoy full human rights and freedoms. Although the right to
legal/juridical
personality is inherent in international human rights law, it has been included
expressis
verbis in both article 16 of the International Covenant on Civil and Political Rights
and
article 3 of the American Convention on Human Rights. Moreover, pursuant to
article
4(2) of the International Covenant and article 27(2) of the American Convention,
this is
a right that cannot in any circumstances be derogated from in times of public
emergency. The right of women to legal personality on an equal basis with men
must, in
other words, be respected in times of peace and in times of war or warlike
situations.
As emphasized by the Human Rights Committee, “the right of everyone
under article 16 to be recognized everywhere as a person before the law is
particularly
pertinent for women, who often see it curtailed by reason of sex or marital
status.”2 As
pointed out by the Committee,
“this right implies that the capacity of women to own property, to enter
into a contract or to exercise other civil rights may not be restricted on the
basis of marital status or any other discriminatory ground. It also implies
that women may not be treated as objects to be given, together with the
property of the deceased husband, to his family.”3
Legal personality also means that women must have full and unimpeded
access to the legal institutions of their country for the purpose of vindicating
their rights
and obtaining compensation or restoration where they are violated.4
Women have a right to legal personality on an equal basis with men.
This right is absolute and must be guaranteed in all circumstances and at
all times.
Lawyers 449
2General Comment No. 28 (Article 3 – Equality of rights between men and women), in UN doc.
HRI/GEN/1/Rev.5,
Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies
(hereinafter referred to as United
Nations Compilation of General Comments), p. 171, para. 19.
3Ibid., loc. cit.
4See further infra, section 10.
3. Women’s Right to Equality

Before the Law and Equal
Protection of the Law
3.1 The Charter of the United Nations and
the International Bill of Human Rights
According to article 1(3) of the Charter of the United Nations, one of the
purposes of the Organization is “to achieve international co-operation in solving
international problems of an economic, social, cultural, or humanitarian
character, and
in promoting and encouraging respect for human rights and for fundamental
freedoms
for all without distinction as to race, sex, language, or religion” (emphasis
added). The
same principle of equality between men and women is stated in articles 13(1)(b),
55(c)
and 76(c). The drafters were thus convinced of the need for gender equality in
the
enjoyment of rights in the post-war world. At the universal level, the prohibition
of
discrimination on the basis of sex was subsequently included in article 2 of the
Universal Declaration of Human Rights, articles 2(1), 4(1) and 26 of the
International
Covenant on Civil and Political Rights and article 2(2) of the International
Covenant on
Economic, Social and Cultural Rights. By virtue of article 3 of both Covenants, the
States parties further expressly undertake to ensure the equal right of men and
women
to the enjoyment of all the rights guaranteed by the respective Covenant.
3.2 The Convention on the Elimination of All Forms
of Discrimination against Women, 1979
Discrimination based on sex became the exclusive focus of the 1979
Convention on the Elimination of All Forms of Discrimination against
Women,
which entered into force on 3 September 1981. As of 10 May 2001, there were
168
States parties. The Convention was preceded by the Declaration on the
Elimination
of Discrimination against Women, proclaimed by the General Assembly in
1967.
The Convention has become an important legal means of promoting the
protection of
the equal rights of women within the framework of the United Nations. The
implementation of its provisions is reviewed by the Committee on the Elimination
of
Discrimination against Women.
For the purposes of the Convention, article 1 states that:
“the term ‘discrimination against women’ shall mean any distinction,
exclusion or restriction made on the basis of sex which has the effect or
purpose of impairing or nullifying the recognition, enjoyment or exercise
by women, irrespective of their marital status, on a basis of equality of men
and women, of human rights and fundamental freedoms in the political,
economic, social, cultural, civil or any other field.” (emphasis added).
As explained by the Committee on the Elimination of Discrimination against
Women, this definition also includes
“gender-based violence, that is, violence that is directed against a women
because she is a women or that affects women disproportionately. It
includes acts that inflict physical, mental or sexual harm or suffering,
threats of such acts, coercion and other deprivations of liberty.”5
It is important to note that this wide interpretation of the definition of
discrimination means that “gender-based violence may breach specific
provisions of
the Convention, regardless of whether those provisions expressly mention
violence.”6
The prohibition of discrimination against women thus extends beyond
traditional categories of human rights to other fields where discrimination might
occur.
However, “temporary special measures aimed at accelerating de facto equality
between
men and women shall not be considered discrimination” as defined in the
Convention;
on the other hand, such measures “shall be discontinued when the objectives of
equality of opportunity and treatment have been achieved” (art. 4(1)).
It is also important to point out that, contrary to the International Convention
on the Elimination of All Forms of Racial Discrimination, which only refers to
discrimination in the “field of public life” (art. 1(1)), the Convention on the
Elimination
of All Forms ofDiscrimination against Women has a wider field of application and
also
covers acts falling within the private sphere. As emphasized by the Committee
on the
Elimination of Discrimination against Women,
“discrimination under the Convention is not restricted to action by or on
behalf of Governments (see articles 2(e), 2(f) and 5). For example, under
article 2(e) the Convention calls on States parties to take all appropriate
measures to eliminate discrimination against women by any person,
organization or enterprise. Under general international law and specific
human rights covenants, States may also be responsible for private acts if
they fail to act with due diligence to prevent violations of rights or to
investigate and punish acts of violence, and for providing compensation.”7
Under article 2 of the Convention, States parties more particularly “agree to
pursue by all appropriate means and without delay a policy of eliminating
discrimination against women” and to this end they undertake:
_ “To embody the principle of equality of men and women in their national
constitutions or other appropriate legislation ... and to ensure ... the practical
realization of this principle” (art. 2(a));
_ “To adopt appropriate legislative and other measures, including sanctions
where
appropriate, prohibiting all discrimination against women” (art. 2(b));
_ “To establish effective legal protection of the equal rights of women ... and to
ensure through competent national tribunals and other public institutions the
effective protection of women against any act of discrimination” (art. 2(c));
Lawyers 451
5General Recommendation No. 19 (Violence against women), United Nations Compilation of General
Comments, p. 216, para. 6.
6Ibid., loc. cit.
7Ibid., p. 217, para. 9. On the possible responsibility of States under international human rights law for acts
of private persons,
see also Chapter 1, subsection 2.9 and Chapter 15.
_ “To refrain from engaging in any act or practice of discrimination against
women
and to ensure that public authorities and institutions shall act in conformity with
this
obligation” (art. 2(d));
_ “To take all appropriate measures to eliminate discrimination against women
by any
person, organization or enterprise” (art. 2(e));
_ “To take all appropriate measures, including legislation, to modify or abolish
existing laws, regulations, customs and practices which constitute discrimination
against women” (art. 2(f));
_ “To repeal all national penal provisions which constitute discrimination against
women” (art. 2(g)).
The subsequent articles provide further details of States parties’ obligations to
eliminate discrimination against women, which include the following:
_ “To modify the social and cultural patterns of conduct of men and women ...
which
are based on the idea of the inferiority or the superiority of either of the sexes or
on
stereotyped roles for men and women” (art. 5(a));
_ “To ensure that family education includes a proper understanding of maternity
as a
social function and the recognition of the common responsibility of men and
women in the upbringing and development of their children, it being understood
that the interest of the children is the primordial consideration in all cases” (art.
5(b));
_ To take “all appropriate measures, including legislation, to suppress all forms of
trafficking in women and exploitation of prostitution of women” (art. 6), to
eliminate discrimination against women in the political and public life of the
country
(arts. 7 and 8), and in education (art. 10), employment (art. 11), health care (art.
12)
and other areas of economic and social life (art. 13), and to ensure the
application of
the Convention to women in rural areas (art. 14).
While many articles of the Convention are framed as general legal obligations
of States parties to take “all appropriate measures” to eliminate discrimination
against
women, some set forth specific rights that must be guaranteed on a basis of
equality to
men and women such as:
_ the right to education: women have the right, inter alia, to the same conditions
for
career and vocational guidance and for access to studies and to the same
opportunities for access to scholarships and other grants (art. 10);
_ the right to work, to the same employment opportunities, to free choice of
profession and employment, to equal remuneration, to social security and to
protection of health and safety in working conditions (art. 11);
_ the right to family benefits, to bank loans, mortgages and other forms of
financial
credit and to participate in recreational facilities, sports and all aspects of
cultural life
(art. 13);
_ the right of rural women to participate in the elaboration and implementation
of
development plans, to have access to adequate health care facilities, to benefit
directly from social security programmes, to obtain all types of training and
education, to organize self-help groups, to participate in all community activities,
to
have access to agricultural credit and loans, and to enjoy adequate living
conditions
(art. 14).
Lastly, the Convention imposes a specific duty on States parties to accord to
women “equality with men before the law” and a legal capacity in civil matters
identical
to that of men (art. 15(1) and (2)), and requires them to ensure, “on a basis of
equality of
men and women” a number of rights relating to marriage and the family (art.
16). The
meaning of a number of these obligations will be dealt with further below.
Other relevant universal treaties aiming at ensuring the equality of women in
terms of the enjoyment of specific rights will be considered in the appropriate
section
below.
3.3 Regional human rights treaties
At the regional level, article 2 of the African Charter of Human and Peoples’
Rights, article 1 of the American Convention on Human Rights, article 14 of the
European Convention on Human Rights and Part V, article E, of the European
Social
Charter (Revised), 1996, all stipulate that the rights and freedoms set forth in
these
treaties shall be enjoyed without discrimination based on sex. Like article 26 of
the
International Covenant on Civil and Political Rights, Protocol No. 12 to the
European
Convention on Human Rights contains a general and independent prohibition of
discrimination on certain grounds, which is not linked to the enjoyment of the
rights
guaranteed by the treaty. However, as of 8 June 2002, only Cyprus and Georgia
had
ratified this Protocol, which needs ten ratifications to enter into force. It should
be
pointed out that the non-discrimination provision contained in article 14 of the
European Convention is linked to enjoyment of the rights and freedoms
guaranteed by
the Convention and its Additional Protocols and hence does not have an
existence
independent of those rights and freedoms.
Article 3 of the African Charter and article 24 of the American Convention
further guarantee the right to equality before the law and the right to equal
protection of
the law.
3.4 The meaning of the principle of gender equality
and non-discrimination between women and men
The general meaning of equality and non-discrimination is dealt with in some
depth in Chapter 13, and references are made there to relevant examples of
international case law and legal comments. The present chapter will therefore
merely
summarize the general meaning of the notion of equality of treatment and
non-discrimination in international human rights law and then examine how the
international monitoring bodies have dealt with the specific issue of gender
equality.
Lawyers 453
3.4.1 The general meaning of equality and non-discrimination
The Human Rights Committee has emphasized that non-discrimination,
“together with equality before the law and equal protection of the law without
any
discrimination, constitutes a basic and general principle relating to the protection
of
human rights”.8 However, not all distinctions made between persons and groups
of
persons can be regarded as discrimination in the true sense of the term. This
follows
from the consistent case law of the international monitoring bodies, according to
which
distinctions between people are justified provided that, in general terms, they
are
reasonable and imposed for an objective and legitimate purpose. The common
features
of the case law (also with respect to the equal rights of women) of the Human
Rights
Committee and the Inter-American and European Courts of Human Rights is
summarized as follows in Chapter 13 in the light of some of their most detailed
and
authoritative rulings on the notion of equality of treatment and non-
discrimination:
The principle of equality and non-discrimination does not mean that all
distinctions made between people are illegal under international law.
Differentiations are legitimate and hence lawful provided that they:
_ pursue a legitimate aim such as affirmative action in order to deal
with factual inequalities, and
_are reasonable given their legitimate aim.
Alleged purposes for differential treatment that cannot be objectively
justified and measures that are disproportionate to the attainment of a
legitimate aim are unlawful and contrary to international human rights
law.
In order to ensure the right to equality, States may have to treat
differently persons whose situations are significantly different.
This basic interpretation is the point of departure for any member of the legal
professions who has to consider allegations of discrimination in the exercise of
rights
and freedoms, including complaints regarding discrimination based on gender.
3.4.2 The meaning of equality between women and men
Although the principle of equality and non-discrimination in general human
rights treaties is gender neutral in that it is equally applicable to alleged
discrimination
whether it originates from women or from men, it was considered necessary, as
already
noted, to include in the two International Covenants specific provisions
emphasizing
the obligation of States to ensure the equal right of men and women to the
enjoyment
of all the rights guaranteed by the respective treaty.
8See General Comment No. 18 (Non-discrimination), United Nations Compilation of General Comments, p.
134, para. 1.
In the case of the International Covenant on Civil and Political Rights, the
Human Rights Committee believes that, contrary to the International Convention
on
the Elimination of All Forms of Racial Discrimination and the Convention on the
Elimination of All Forms of Discrimination against Women, which “deal only with
cases of discrimination on specific grounds”,
“the term ‘discrimination’ as used in the Covenant should be understood
to imply any distinction, exclusion, restriction or preference which is based
on any ground such as race, colour, sex, language, religion, political or
other opinion, national or social origin, property, birth or other status, and
which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise by all persons, on an equal footing, of all rights and
freedoms.”9
The Human Rights Committee thus has a much wider field of competence in
dealing with issues of discrimination than the Committees overseeing the
implementation of the other two treaties.
With regard to the equality of rights between women and men as provided by
article 3 of the Covenant, it implies, according to the Committee,
“that all human beings should enjoy the rights provided for in the
Covenant, on an equal basis and in their totality. The full effect of this
provision is impaired whenever any person is denied the full and equal
enjoyment of any right. Consequently, States should ensure to men and
women equally the enjoyment of all rights provided for in the Covenant.”10
The obligation to ensure the rights contained in the Covenant without
discrimination
“requires that States parties take all necessary steps to enable every person
to enjoy those rights. These steps include the removal of obstacles to the
equal enjoyment of such rights, the education of the population and of
State officials to human rights, and the adjustment of domestic legislation
so as to give effect to the undertakings set forth in the Covenant. The State
party must not only adopt measures of protection, but also positive
measures in all areas so as to achieve the effective and equal empowerment
of women.”11
Moreover, in the Committee’s view, articles 2 and 3 of the Covenant mandate
the States parties “to take all steps necessary, including the prohibition of
discrimination on the ground of sex, to put an end to discriminatory actions,
both in
the public and the private sector, which impair the equal enjoyment of
rights”.12
Lawyers 455
9Ibid., p. 135, para. 7.
10Ibid., General Comment No. 28 (Article 3 – Equality of rights between men and women), p. 168, para. 2.
11Ibid., p. 168, para. 3.
The Committee adds in this connection that:
“Inequality in the enjoyment of rights by women throughout the world is
deeply embedded in tradition, history and culture, including religious
attitudes. The subordinate role of women in some countries is illustrated
by the high incidence of prenatal sex selection and abortion of female
foetuses. States parties should ensure that traditional, historical, religious
or cultural attitudes are not used to justify violations of women’s right to
equality before the law and to equal enjoyment of all Covenant rights.”13
The legal duty of States parties to ensure full and equal enjoyment of rights for
all and, in particular, for men and women, thus covers all sectors of society. It
should be
noted that this obligation is immediate and thus neither progressive nor
dependent on
the available resources of the States parties concerned.
*****
The Committee that monitors implementation of the Convention on the
Elimination of All Forms of Discrimination against Women has not yet made any
general recommendation on article 1 of the Convention as such. The best
sources of
information about the Committee’s understanding of the concept of
“discrimination
against women” are therefore its comments on reports submitted by States
parties and
its general recommendations on specific issues.
Suffice it to recall in this regard that, as pointed out by the Committee,
“discrimination under the Convention is not restricted to action by or on behalf of
Governments”14 but also extends to private entities. In support of its view, the
Committee refers to articles 2(e), 2(f) and 5 of the Convention which impose on
States
parties the legal duty to take all appropriate measures both “to eliminate
discrimination
against women by any person, organization or enterprise” and to modify existing
laws,
regulations, customs and practices as well as social and cultural patterns that
constitute
discrimination against women.15
These legal provisions clearly show that the States parties to this Convention
also have a legal duty to take specific positive steps in all fields of society where
gender
discrimination exists, including positive steps to change entrenched
discriminatory
practices in the private domain, where women often suffer serious hardship,
inter alia as
a consequence of violence.
*****
13Ibid., pp. 168-169, para. 5.
14Ibid., General Recommendation No. 19 (Violence against women), p. 217, para. 9.
15Ibid. For further details of these legal provisions see above (sub-section 3.2).
Although not legally binding per se, the Vienna Declaration and
Programme of Action is an important statement of principles and policy that
was
unanimously adopted by the States participating in the World Conference on
Human
Rights in 1993; according to the Declaration, the “human rights of women and of
the
girl child are an inalienable, integral and indivisible part of universal human
rights” and
the “full and equal participation of women in political, civil, economic, social and
cultural life, at the national, regional and international levels, and the eradication
of all
forms of discrimination on grounds of sex are priority objectives of the
international
community.”16 The Beijing Declaration and Platform for Action was likewise
adopted unanimously by the participating States; paragraph 1 of the Mission
Statement
opening the Platform states that it aims inter alia at “removing all the obstacles
to
women’s active participation in all spheres of public and private life through a
full and
equal share in economic, social, cultural and political decision-making”.17
*****
Given that the world’s Governments have an all-inclusive legal duty to
eliminate gender-based discrimination in their countries, judges, prosecutors and
lawyers also have a professional responsibility to examine alleged violations of
the right
to equality and non-discrimination on the basis of gender, regardless of the
origin of the
alleged discrimination.
Women have the right to equality with men before the law. This right to
legal equality is independent of a woman’s civil status.
The prohibition of discrimination based on sex includes gender-based
violence.
Women’s right to legal equality with men means that States have to
eliminate all legal and factual discrimination against women in both the
public and private sectors. It also implies that States are duty bound, as
a minimum, to take all appropriate measures to modify local customs
and traditions that may impede the full realization of women’s right to
equality.
Lawyers 457
16See UN doc. A/CONF.157/23, Part I, para. 18; emphasis added. The United Nations General Assembly
subsequently
endorsed the Declaration and its recommendations without a vote by resolution 48/121 of 20 December
1993.
17For the text of the Beijing Declaration and Platform for Action, see
www.un.org/womenwatch/daw/beijing/platform; the
Declaration and Platform for Action was subsequently endorsed by the United National General Assembly
without a vote by
resolution 50/42 of 8 December 1995. For information about the Special Session of the General Assembly
that assessed progress
made since the 1995 Beijing Conference, see www.un.org/womenwatch/confer/beijing5/.
4. Women’s Right to Respect for

their Life and their Physical and
Mental Integrity
4.1 Relevant legal provisions
Women have the right to respect for their life, their right to freedom from
torture and cruel, inhuman or degrading treatment and punishment, and their
right to
liberty and security of person as guaranteed by all general human rights treaties
(e.g.
articles 6, 7 and 9 of the International Covenant on Civil and Political Rights,
articles 4,
5 and 6 of the African Charter on Human and Peoples’ Rights, articles 4, 5 and 7
of the
American Convention on Human Rights and articles 2, 3 and 5 of the European
Convention on Human Rights).18
The only universal legal document dealing expressis verbis with violence against
women, is the Declaration on the Elimination of Violence against Women,
which
was adopted by the United Nations General Assembly in 199319 and which states
that:
“the term ‘violence against women’ means any act of gender-based
violence that results in, or is likely to result in, physical, sexual or
psychological harm or suffering to women, including threats of such acts,
coercion or arbitrary deprivation of liberty, whether occurring in public or
private life.”
Violence against women is given a wide meaning in article 2 of the
Declaration. It is understood to encompass, but is not limited to, the following:
“(a) Physical, sexual and psychological violence occurring in the family,
including battering, sexual abuse of female children in the household,
dowry-related violence, marital rape, female genital mutilation and other
traditional practices harmful to women, non-spousal violence and violence
related to exploitation;
(b) Physical, sexual and psychological violence occurring within the
general community, including rape, sexual abuse, sexual harassment and
intimidation at work, in educational institutions and elsewhere, trafficking
in women and forced prostitution;
(c) Physical, sexual and psychological violence perpetrated or condoned
by the State, wherever it occurs.”
Article 3 of the Declaration confirms, in a limited way, what is already evident
from the general application of international human rights law, namely that
“women
are entitled to the equal enjoyment and protection of all human rights and
fundamental
freedoms in the political, economic, social, cultural, civil or any other field.” It
may be
18On these issues, see Chapters 5 and 8 of this Manual.
19General Assembly resolution 48/104 adopted on 20 December 1993.
noted that the ensuing list, which is admittedly non-exhaustive, makes no
reference to
such important rights as freedom of opinion, belief, religion, expression and
movement, without which women are unlikely to be able to vindicate their rights
efficiently.
The Declaration also identifies measures to be taken both by individual States
and by the organs and specialized agencies of the United Nations to eliminate
violence
against women in both the public and private spheres (arts. 4-5).
Although it is not legally binding per se, the Declaration provides strong
evidence that the violent acts it describes constitute infringements of
international
human rights law by the States Members of the United Nations. The Declaration
can
thus also be useful in interpreting relevant provisions of both international and
national
law aimed at protecting the physical and mental integrity of women.
While there is no treaty dealing expressis verbis with gender violence at the
universal level, the Committee on the Elimination of Discrimination against
Women
has made it clear, as noted in sub-section 3.2 above, that the definition of
discrimination
contained in article 1 of the Convention on the Elimination of All Forms of
Discrimination against Women also covers gender-based violence,
notwithstanding the
fact that the provisions of the Convention do not expressly mention violence. The
Committee has also interpreted articles 2, 5, 11, 12 and 16 of the Convention as
requiring the States parties “to act to protect women against violence of any
kind
occurring within the family, at the workplace or in any area of social life”.20 The
Committee further holds that “gender-based violence is a form of discrimination
that
seriously inhibits women’s ability to enjoy rights and freedoms on a basis of
equality
with men,”21 and such violence, “which impairs or nullifies the enjoyment by
women of
human rights and fundamental freedoms under general international law or
under
human rights conventions, is discrimination within the meaning of article 1 of the
Convention”.22
*****
So far, only one treaty deals exclusively with the widespread problem of
violence against women, namely the Inter-American Convention on the
Prevention, Punishment, and Eradication of Violence against Women,
which is
also called the “Convention of Belém do Pará” and which was adopted by the
General
Assembly of the Organization of American States in 1994. According to article 2
of this
Convention:
Lawyers 459
Comments, p. 209.
21Ibid., General Recommendation No. 19 (Violence against women), p. 216, para. 1.
22Ibid., p. 217, para. 7. The General Recommendation also gives examples of how violence can negatively
affect the enjoyment of
a number of rights such as those in articles 6, 11, 12, 14 and 16(5), and provides a list of specific
recommendations to States parties
aimed at overcoming gender-based violence.
“Violence against women shall be understood to include physical, sexual
and psychological violence:
a. that occurs within the family or domestic unit or within any other
interpersonal relationship, whether or not the perpetrator shares or has
shared the same residence with the women, including, among others, rape,
battery and sexual abuse;
b. that occurs in the community and is perpetrated by the person,
including, among others, rape, sexual abuse, torture, trafficking in persons,
forced prostitution, kidnapping and sexual harassment in the workplace, as
well as in educational institutions, health facilities or any other place; and
c. that is perpetrated or condoned by the state or its agents regardless
of where it occurs.”
The Convention goes on to state that “every woman has the right to be free
from violence in both the public and private spheres” (art. 3) and the States
Parties
recognize that “violence against women prevents and nullifies the exercise” of
the civil,
political, economic, social and cultural rights embodied in regional and
international
human rights instruments, the “free and full exercise” of which women are
entitled to
enjoy (art. 5).
According to article 6 of the Convention, a woman’s right to be free from
violence, includes, inter alia, “the right…to be free from all forms of
discrimination”
and “the right to be valued and educated free of stereotyped patterns of
behaviour and
social and cultural practices based on concepts of inferiority or subordination”.
Articles 7 and 8 lay down measures that States parties have to take either
“without delay” (art. 7) or “progressively” (art. 8) in order to prevent, punish and
eradicate violence against women. In adopting such measures:
“the States Parties shall take special account of the vulnerability of women
to violence by reason of, among others, their race or ethnic background or
their status as migrants, refugees or displaced persons. Similar
consideration shall be given to women subjected to violence while
pregnant or who are disabled, of minor age, elderly, socioeconomically
disadvantaged, affected by armed conflict or deprived of their freedom.”
This provision is an important admission of the precariousness (to which
reference was already made in the Introduction) of special groups of women,
whose
situation is particularly dramatic and who may therefore need special protection
from
the legal professions against acts of violence.
Every woman has the right to respect for her life and for her physical and
mental integrity on an equal basis with men.
Gender-based violence and threats of such violence are prohibited by
international human rights law, whether such acts occur in the public or
private sphere.
Violence against women impairs or nullifies their right to enjoy their
rights and freedoms on a basis of equality with men.
Women in vulnerable situations must be given special attention and
protection against acts of violence.
4.2 The right to life
While the terms of the various human rights treaties vary to some extent, their
common basic rule is that women, like men, have the right not to be arbitrarily
deprived
of life (article 6 of the International Covenant on Civil and Political Rights, article
4 of
the African Charter on Human and Peoples’ Rights, article 4 of the American
Convention on Human Rights and article 2 of the European Convention on
Human
Rights). Article 4(a) of the Inter-American Convention on the Prevention,
Punishment,
and Eradication of Violence against Women states that every women has “the
right to
have her life respected”.
With regard to the death penalty, article 6(5) of the International Covenant
and article 4(5) of the American Convention contain a specific provision
outlawing its
application to pregnant women, a case in which “the enjoyment of rights and
freedoms
on an equal footing ... does not mean identical treatment in every instance”.23
The Human Rights Committee states that the “inherent right to life” as
guaranteed by article 6 of the International Covenant “cannot properly be
understood
in a restrictive manner” and that its protection “requires that States adopt
positive
measures”.24 Basing itself on this wide interpretation, the Committee also
considers, for
instance, “that it would be desirable for States parties to take all possible
measures to
reduce infant mortality and to increase life expectancy, especially in adopting
measures
to eliminate malnutrition and epidemics”.25
4.2.1 Abduction and murder
Violence against women involving abduction and murder as well as
extrajudicial killings by security forces are, of course, strictly forbidden under
international human rights law. Whether committed by government officials or
family
members, such illegal acts must be investigated and punished. Moreover,
Governments
have a legal duty under international law to prevent them from taking place.26
The Human Rights Committee expressed concern in the case of Mexico “at
the level of violence against women, including the many reported cases of
abduction
and murder which have not led to the arrest or trial of the perpetrators”; the
State Party
should
Lawyers 461
23Human Rights Committee, General Comment No. 18 (Non-discrimination), United Nations Compilation of
General Comments,
p. 135, para. 8.
24Ibid., General Comment No. 6 (art. 6), p. 115, para. 5.
25Ibid., loc. cit.
26On the duty of Governments to prevent, investigate and remedy human rights abuses, see Chapter 15 of
this Manual.
“take effective measures to protect the security of women to ensure that no
pressure is brought to bear on them to deter them from reporting such
violations, and to ensure that all allegations of abuse are investigated and
the perpetrators brought to justice”.27
The Committee also expressed concern about the level of violence against
women in Venezuela, “including the many reported cases of kidnapping and
murder
that have not resulted in arrests or prosecution of those responsible”. It
recommended
that the State Party “should take effective measures to guarantee women’s
safety”,
stating that the issue raised “serious concerns” under article 6 of the
Covenant.28
*****
In the case of Velásquez Rodríguez, the Inter-American Court of Human Rights
held that the practice of disappearances violated many provisions and
constituted “a
radical breach” of the American Convention on Human Rights in that it showed
“a
crass abandonment of the values which emanate from the concept of human
dignity
and of the most basic principles of the inter-American system and the
Convention”.29
For a State party to incur responsibility under the Convention for an alleged
disappearance, it is not conclusive that there is evidence that the State itself is
directly
responsible for the act. As stated by the Court, “what is decisive is whether a
violation
of the rights recognized by the Convention has occurred with the support or the
acquiescence of the government, or whether the State has allowed the act to
take place
without taking measures to prevent it or to punish those responsible;” in other
words,
the State has “a legal duty to take reasonable steps to prevent human rights
violations
and to use the means at its disposal to carry out a serious investigation of
violations
committed within its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate compensation”.30
States’
legal responsibilities are thus far-reaching, although they may not themselves be
directly
involved, for instance, in the abductions. For more information on States’ duty to
prevent, investigate, punish and compensate human rights violations, see
Chapter 15 of
this Manual.
4.2.2 Dowry violence and “honour” killings
In some countries, the bride’s family has to pay a dowry to the bridegroom’s
family, the sum of which is agreed upon by the families. If for some reason the
dowry is
not paid or is considered to be too small, violence against the bride can ensue,
and in
some communities she may even be burned alive or disfigured by sulphuric acid
either
by her husband or by his family.31 “Honour” killings take place in a number of
countries. A male member of the family kills a girl or woman who has “erred” in
her
29I-A Court HR, Velàsquez Rodríguez Case, Judgment of July 29, 1988, Series C, No. 4, p. 149, para. 158.
30Ibid., pp. 154-155, paras. 173-174.
31See, for exampoe, Carin Benninger-Budel and Anne-Laurence Lacroix, Violence against Women – A Report
(Geneva, World
Organization against Torture (OMCT), 1999), pp. 119-120.
conduct, a “mistake” that is considered to justify the taking of her life;
alternatively, a
man from outside the family circle may be hired to commit the crime.
*****
The Committee on the Elimination of Discrimination against Women has
stated with regard to articles 2(f), 5 and 10(c) of the Convention on the
Elimination of
All Forms of Discrimination against Women that “traditional attitudes by which
women are regarded as subordinate to men or as having stereotyped roles
perpetuate
widespread practices involving violence or coercion, such as family violence and
abuse,
forced marriage, dowry deaths, acid attacks and female circumcision. Such
prejudices
and practices may justify gender-based violence as a form of protection or
control of
women. The effect of such violence on the physical and mental integrity of
women is to
deprive them of the equal enjoyment, exercise and knowledge of human rights
and
fundamental freedoms.”32
The Committee expressed concern about violence against women in Jordan
and Iraq in the form of “honour” killings; under article 340 of the Jordanian Penal
Code, for instance, “a man who kills or injures his wife of his female kin caught in
the
act of adultery” is excused.33 The Committee urged Jordan “to provide all
possible
support for the speedy repeal of article 340 and to undertake awareness-raising
activities that make ‘honour killings’ socially and morally unacceptable”.34 As
women in
Jordan threatened by “honour” killings are jailed for their own protection, the
Committee also urged the Government “to take steps that ensure the
replacement of
protective custody with other types of protection for women”.35 The Committee
urged
Iraq “in particular to condemn and eradicate honour killings and ensure that
these
crimes are prosecuted and punished in the same way as other homicides”.36
*****
The Committee on Economic, Social and Cultural Rights also expressed
concern, in the case of Jordan, “at the fact that crimes against women
perpetrated in the
name of honour go unpunished”.37
4.2.3 Female genital mutilation
Female genital mutilation is a practice that is widespread in certain parts of the
world and may have serious implications for girls’ health, even causing death
through
the use of unsterilized surgical tools or owing to poor general hygiene during the
intervention. The harmfulness of female genital mutilation has been documented
by
the World Health Organization.38
Lawyers 463
32See General Recommendation No. 19 (Violence against women), United Nations Compilation of General
Comments, pp. 217-218,
para. 11.
33UN doc. GAOR, A/55/38, p. 20, para. 178 (Jordan), and p. 69, para. 193 (Iraq).
34Ibid., p. 20, para. 179.
35Ibid., loc. cit.
36Ibid., p. 69, para. 194.
37UN doc. E/2001/22 (E/C.12/2000/21), p. 51, para. 236.
38See in general WHO web site: www.ilo.int/ and also references in Handout No. 1.
recommended that States parties to the Convention on the Elimination of All
Forms of
Discrimination against Women should ensure “the enactment and effective
enforcement of laws that prohibit female genital mutilation”.39 It has also
recommended that States parties “take appropriate and effective measures with
a view
to eradicating the practice of female circumcision”. Such measures could
include:
_ the collection and dissemination of basic data about such traditional practices;
_ the support of women’s organizations working for the elimination of female
circumcision and other practices harmful to women;
_ the encouragement of politicians, professionals, religious and community
leaders at
all levels including the media and the arts to cooperate in influencing attitudes
towards the eradication of female circumcision;
_ the introduction of appropriate educational and training programmes and
seminars
based on research findings about the problems arising from female circumcision;
_ the inclusion in national health policies of appropriate strategies aimed at
eradicating female circumcision in public health care.40
With regard to Egypt, the same Committee welcomed the Minister of Health’s
Decree of 1996 imposing a ban on female genital mutilation, but it still
expressed
concern at the lack of information about implementation of the Decree.41
4.2.4 Abortion
The question of abortion is not expressly dealt with in the general
international human rights treaties, but article 4(1) of the American Convention
on
Human Rights stipulates that the right to life “shall be protected by law, and, in
general,
from the moment of conception”, a provision that seems to exclude any
unconditional
resort to abortion even during the first weeks of pregnancy. On the other hand, it
has
been argued that unduly restrictive abortion laws may endanger the life and
health of
pregnant women who resort to clandestine interruptions of pregnancy.
*****
Examining this issue under article 6 of the International Covenant on Civil
and Political Rights, the Human Rights Committee stated, with regard to the
situation
in Guatemala, that “the criminalization of all abortion, with the severe penalties
imposed by the legislation in force except where the mother’s life is in danger,
gives rise
to serious problems, especially in the light of unchallenged reports of serious
impact on
maternal mortality of clandestine abortions and the lack of information on family
planning;” in the Committee’s view, the State party therefore had the duty
39See General Recommendation No. 24 (Article 12 – Women and health), United Nations Compilation of
General Comments, p. 248,
para. 15(d).
40Ibid., General Recommendation No. 14 (Female circumcision), pp. 211-212, subparagraphs (a) and (b).
“to adopt the necessary measures to guarantee the right to life (art. 6) of
pregnant women who decide to interrupt their pregnancy by providing the
necessary information and resources to guarantee their rights and
amending the legislation to provide for exceptions to the general
prohibition of all abortions, except when the mother’s life is in danger”.42
The Committee also suggested that Costa Rican legislation on abortion be
amended to allow for exceptions to the general prohibition of the interruption of
pregnancy in that country.43 Peruvian legislation has also been “a matter of
concern” to
the Committee, since it penalizes abortions even where pregnancy is the result
of rape.
Noting that clandestine abortion continues to be the main cause of maternal
mortality
in Peru,44 the Committee reiterated that such legal provisions “are incompatible
with
articles 3, 6 and 7 of the Covenant” and recommended “that the legislation
should be
amended to establish exceptions to the prohibition and punishment of
abortion”.45
*****
The Committee on the Elimination of Discrimination against Women
expressed concern, in the case of Jordan, “that the prohibition of abortion also
applies
to cases where pregnancy is due to rape or incest” and called on the
Government “to
initiate legislative action to permit safe abortion for victims of rape and incest”.46
4.2.5 Infant mortality and life expectancy
Given its wide understanding of the right to life and the ensuing
responsibilities of States parties to act positively to protect it, including the
aforementioned duty to take measures to reduce infant mortality and increase
life
expectancy, the Human Rights Committee stated, in the case of the Democratic
People’s Republic of Korea, that it remained “seriously concerned about the lack
of
measures taken by the State party to deal with the food and nutrition situation in
the
DPRK and the lack of measures taken to address, in cooperation with the
international
community, the causes and consequences of the drought and other natural
disasters
which seriously affected the country’s population in the 1990s”.47 This duty of
States
parties under article 6 of the Covenant to take positive measures to reduce
infant
mortality and increase life expectancy by dealing with the root causes of the
problems
affecting the population’s life cycle is particularly important in the case of
women and
the girl child, who often have to carry an undue burden in times of scarcity of
food and
inadequate health care. Women and children must therefore at all times have
access to
food and health care on an equal footing with men.
Lawyers 465
45Ibid., loc. cit.
46UN doc. GAOR, A/55/38, p. 20, paras. 180-181.
Women’s right to life must be respected at all times.
States have a corresponding legal duty positively to protect women’s life.
Violence, including abduction, murder and extrajudicial killings, are
strictly prohibited at all times.
Violence linked to dowry or“honour” killings are strictly prohibited by
international law and must be prevented, prosecuted and punished by the
State concerned.
Female genital mutilation is harmful to the health and life of women and
contrary to international law. States have a duty to take appropriate and
effective measures to eradicate this practice.
To prevent maternal mortality, national legislation must, as a minimum,
provide for the possibility of abortion in cases where, for example, the
health of the mother is in danger, and in cases of rape or incest.
The death penalty may not be imposed on pregnant women.
States have a legal responsibility under international law to take positive
measures to reduce infant mortality and increase life expectancy by
dealing with the root causes and providing women with equal access to
food and health care.
4.3 The right to freedom from torture and other
cruel, inhuman or degrading treatment or
punishment
Women have the basic right at all times effectively to enjoy freedom from
torture and from cruel, inhuman or degrading treatment or punishment (see
article 7 of
the International Covenant on Civil and Political Rights, the Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article
5 of
the African Charter on Human and Peoples’ Rights, article 5(2) of the American
Convention on Human Rights, article 4 of the Inter-American Convention on the
Prevention, Punishment, and Eradication of Violence against Women, article 3 of
the
European Convention on Human Rights and the European Convention for the
Prevention of Torture and Inhuman and Degrading Treatment or Punishment).
The
right to freedom from torture and other ill-treatment must be ensured at all
times and
cannot be derogated from in public emergencies (article 4(2) of the International
Covenant, article 27(2) of the American Convention and article 15(2) of the
European
Convention).
Without being in any way exhaustive, this sub-section will consider
institutional, institutionalized, domestic and community violence against women.
4.3.1 Violence against women deprived of their liberty
The general international human rights treaties do not expressis verbis recognize
the fact that women deprived of their liberty are in a particularly vulnerable
situation
and therefore need special protection against violence such as sexual abuse on
the part
of prison officials. Only in article 7(a) of the Inter-American Convention on the
Prevention, Punishment, and Eradication of Violence against Women do the
States
parties undertake to refrain from engaging in any act or practice of violence
against
women and to ensure that their authorities, officials, personnel, agents, and
institutions
act in conformity with the obligation to prevent, punish and eradicate violence
against
women.
With regard to the treatment of detainees, article 10(1) of the International
Covenant on Civil and Political Rights stipulates, more specifically, that “all
persons
deprived of their liberty shall be treated with humanity and with respect for the
inherent
dignity of the human person.” In a similar vein, article 5(2)of the American
Convention
on Human Rights stipulates that “all persons deprived of their liberty shall be
treated
with respect for the inherent dignity of the human person.” Lastly, according to
Rule
8(a) of the United Nations Standard Minimum Rules for the Treatment of
Prisoners:
“Men and women shall so far as possible be detained in separate
institutions; in an institution which receives both men and women the
whole of the premises allocated to women shall be entirely separate.”
If strictly applied, this rule of separation of categories of prisoners helps to
protect female prisoners. However, they are still vulnerable to abuse by prison
officials
and guards, especially if they are men.
*****
The international monitoring bodies have so far paid relatively scant attention
to the problem of abuse of women in police custody or otherwise deprived of
their
liberty. However, in General Comment No. 28, the Human Rights Committee
emphasizes that “States parties must provide all information relevant to
ensuring that
the rights of persons deprived of their liberty are protected on equal terms for
men and
women. In particular, States parties should report on whether men and women
are
separated in prisons and whether women are guarded only by female guards.
States
parties should also report about compliance with the rule that accused juvenile
females shall be separated from adults and on any difference in treatment
between
male and female persons deprived of liberty, such as access to rehabilitation and
education programmes and to conjugal and family visits. Pregnant women
who are
deprived of their liberty should receive humane treatment and respect for
their
inherent dignity at all times, and in particular during the birth and while caring
for their
newborn children.”48
Lawyers 467
48General Recommendation No. 28 (Article 3 – Equality of rights between men and women), United Nations
Comments, p. 170, para. 15. Emphasis added.
The Human Rights Committee has stated, for instance, that the many
allegations of rape and torture of women detained in Mexico and Venezuela by
the
security forces in those countries raise “serious concerns” under article 7 of the
International Covenant on Civil and Political Rights; the States Parties should
therefore
“take effective measures to guarantee women’s safety, ensure that no pressure
is put on
them to dissuade them from reporting such violations, that all allegations of
abuses are
investigated and that those committing such acts are brought to justice”.49
*****
The Committee against Torture has recently begun to ask States parties to the
Convention against Torture to provide data disaggregated by gender “on civil
and
military places of detention as well as on juvenile detention centres and other
institutions where individuals may be vulnerable to torture or ill-treatment”.50
When
examining the initial report of Kazahkstan, the Committee expressed concern
about
“the absence of information in the report regarding torture and ill-treatment
affecting
women and girls, particularly in view of the rise in imprisonment rates of females
and
allegations of abusive treatment of women in police custody”.51 In the case of
Canada,
it expressed concern about allegations that female detainees had been “treated
harshly
and improperly by the authorities of the State party, and that many
recommendations
of the Arbour report [had] yet to be implemented”.52
The Committee against Torture also expressed concern, in the case of the
United States, about alleged “cases of sexual assault upon female detainees and
prisoners by law enforcement officers and prison personnel”; in the Committee’s
view,
female “detainees and prisoners are also very often held in humiliating and
degrading
circumstances”.53 The Committee recommended in general that the State party
take
“such steps as are necessary to ensure that those who violate the Convention
are
investigated, prosecuted and punished, especially those who are motivated by
discriminatory purposes or sexual gratification”54. In the case of the Netherlands,
the
Committee expressed concern about the “inadequate deployment of female
officers”
(i.e. law enforcement officers).55
When examining the third periodic report of Egypt, the Committee further
expressed concern at the allegation by the World Organization against Torture
concerning the “treatment of female detainees, by both the police and the State
Security
Intelligence, which sometimes involves sexual abuse or threat of such abuse in
order to
obtain information relating to husbands or other family members”; the
Committee
therefore recommended that “effective steps be taken to protect women from
threats
49UN docs. GAOR, A/54/40 (vol. I), p. 64, para. 328 (Mexico), and GAOR, A/56/40 (vol. I), p. 52, para. 17
(Venezuela);
the quotation is from the latter report but the content is the same as in the report concerning Mexico.
50See, for example, with regard to Kazakhstan, UN doc. GAOR, A/56/44, p. 55, para. 129(m).
51Ibid., p. 54, para. 128(j).
52Ibid., p. 26, para. 58(b); the report referred to was: Commission of Inquiry into Certain Events at the
Prisons for Women at Kingston,
Commissioner: The Honorable Louise Arbour, Canada, 1996.
53UN doc. GAOR, A/55/44, p. 32, para. 179(d).
54Ibid., p. 32, para. 180(b).
55Ibid., p. 34, para. 187(a).
of sexual abuse by police and officers of the State Security Intelligence as a
means of
obtaining information from them”.56
*****
For information on case law concerning rape as torture, see Chapter 8,
sub-section 2.3.1, of this Manual.
*****
It is vitally important that judges, prosecutors and lawyers pay particular
attention to the special needs and vulnerability of women in custody, that they
examine
allegations of ill-treatment, including sexual abuse, with diligence and efficiency
and
that they are alert to any sign of torture or other kinds of ill-treatment of women,
who
might not dare to denounce the perpetrators of such violence.
4.3.2 Unlawful punishments
According to the Human Rights Committee, “the prohibition in article 7
relates not only to acts that cause physical pain but also to acts that cause
mental
suffering to the victim;” in the Committee’s view, moreover, “the prohibition
must
extend to corporal punishment, including excessive chastisement ordered as
punishment for a crime or as an educative or disciplinary measure.”57 This view
was
confirmed in the Osbourne case, where the author had been given a 15-year
prison
sentence with hard labour and ordered to receive ten strokes of the tamarind
switch for
illegal possession of a firearm, robbery with aggravation and wounding with
intent. It
was “the firm opinion of the Committee” in this case that, irrespective of “the
nature of
the crime that is to be punished, however brutal it may be, ... corporal
punishment
constitutes cruel, inhuman and degrading treatment or punishment”
contrary to
article 7 of the Covenant, which was thus violated.58 The Committee informed the
Government that it was “under an obligation to refrain from carrying out the
sentence
of whipping upon Mr. Osbourne” and, further, that it “should ensure that similar
violations do not occur in the future by repealing the legislative provisions that
allow
for corporal punishment”.59
*****
With regard to Namibia, the Committee against Torture recommended “the
prompt abolition of corporal punishment” insofar as it was still legally possible
under
Namibian law to impose such punishment.60
*****
Lawyers 469
56UN doc. GAOR, A/54/44, p. 23, paras. 209 and 212.
57General Comment No. 20 (Article 7), United Nations Compilation of General Comments, p. 139, para. 5.
58Communication No. 759/1997, G. Osbourne v. Jamaica (Views adopted on 15 March 2000), in UN doc.
GAOR, A/55/40
(vol. II), p. 138, para. 9.1; emphasis added
59Ibid., p. 138, para. 11.
The prohibition of corporal punishment is, of course, equally applicable to
women, who may, for instance, run the risk of flogging or stoning if they have
not
complied with a certain dress code or if, as illustrated by the two cases
described below,
they have committed adultery. The Human Rights Committee has therefore
asked
States parties to provide information in their reports “on any specific regulation
of
clothing to be worn by women in public”, stressing that such regulations “may
involve a
violation of a number of rights” contained in the International Covenant on Civil
and
Political Rights, such as article 7, “if corporal punishment is imposed in order to
enforce such a regulation”.61 The following two cases involving the possible
imposition
of corporal punishment for having committed adultery were brought,
respectively,
under the Convention against Torture and the European Convention on Human
Rights. The outcome of these cases showed, quite importantly, that there is
consistency
among the international monitoring bodies in their understanding of the concept
of
“torture” and other kinds of ill-treatment outlawed by international human rights
law.
*****
Female refugees and asylum-seekers may have an interest in not being
returned to their country of origin because they risk being subjected, for
instance, to
torture or cruel punishment. In the case of the Convention against Torture and
Other
Cruel, Inhuman or Degrading Treatment or Punishment, this possibility has to be
considered under article 3(1), which reads as follows:
“1. No State Party shall expel, return (“refouler”) or extradite a person to
another State where there are substantial grounds for believing that he
would be in danger of being subjected to torture.
2. For the purpose of determining whether there are such grounds, the
competent authorities shall take into account all relevant considerations
including, where applicable, the existence in the State concerned of a
consistent pattern of gross, flagrant or mass violations of human rights.”
The Committee against Torture has described the determination of risk under
article 3 in the following terms:
“The aim of the determination, however, is to establish whether the
individual concerned would be personally at risk of being subjected to
torture in the country to which she would return. It follows that the
existence of a consistent pattern of gross, flagrant or mass violations of
human rights in a country does not as such constitute a sufficient ground
for determining that a particular person would be in danger of being
subjected to torture upon his return to that country; additional grounds
must exist to show that the individual concerned would be personally at
risk. Similarly, the absence of a consistent pattern of gross violations of
61General Comment No. 28 (Article 3 – Equality of rights between men and women), United Nations
Comments, p. 170, para. 13. Other articles of the Covenant that may be violated by regulations imposing a
dress code are: article 26 on
non-discrimination; article 9 “when failure to comply with the regulation is punished by arrest”; article 12,
“if liberty of movement is
subject to such a constraint”; article 17, “which guarantees all persons the right to privacy without arbitrary
or unlawful interference”;
articles 18 and 19, “when women are subjected to clothing requirements that are not in keeping with their
religion or their right of
self-expression”; and, lastly, article 27, “when the clothing requirements conflict with the culture to which
the women can lay a claim”.
human rights does not mean that a person cannot be considered to be in
danger of being subjected to torture in his or her specific circumstances.”62
In this particular case, the author, an Iranian citizen, had applied for asylum in
Sweden for herself and her son. The author stated that she was “the widow of a
martyr
and as such supported and supervised by the Bonyad-e Shahid Committee of
Martyrs”;
she claimed furthermore that she had been forced into a sighe or mutah
marriage and that
she had “committed and been sentenced to stoning for adultery”.63 Although the
Swedish Government questioned her credibility, the Committee against Torture
ruled
in her favour and decided that the State Party had “an obligation, in accordance
with
article 3 of the Convention, to refrain from forcibly returning the author to the
Islamic
Republic of Iran or to any other country where she [ran] a risk of being expelled
or
returned to the Islamic Republic of Iran”.64 The Committee thus accepted that
the
author would run the risk of being sentenced to stoning for adultery if returned
to her
country of origin. In arriving at its decision the Committee referred to a report of
the
United Nations Special Representative on the situation of human rights in the
Islamic
Republic of Iran as well as to “numerous reports of non-governmental
organizations”,
which confirmed that married women had recently been sentenced to death by
stoning
for adultery.65
*****
The situation in the case of Jabari – which was brought under article 3 of the
European Convention on Human Rights – was similar in that the applicant, an
Iranian
citizen, alleged that “she would be subjected to a real risk of ill-treatment and
death by
stoning if expelled from Turkey” to the Islamic Republic of Iran.66 While attending
a
secretarial college in the Islamic Republic of Iran, the applicant had met a man
with
whom she fell in love; after some time they decided to get married but her
friend’s
family opposed the marriage and he married another women; however, the
applicant
and her former friend continued to see each other and to have sexual relations
until they
were stopped one day by policemen and detained.67 The applicant underwent a
virginity
test in custody but was eventually released with the help of her family; she
entered
Turkey illegally and then tried to go to Canada via France where she was caught
using a
forged Canadian passport.68 She was thereupon returned to Istanbul. Back in
Turkey,
the Office of the United Nations High Commissioner for Refugees (UNHCR)
granted
her refugee status “on the basis that she had a well-founded fear of persecution
if
removed to Iran as she risked being subjected to inhuman punishment, such as
death by
stoning, or being whipped or flogged”.69
Lawyers 471
62See Communication No. 149/1999, A.S. v. Sweden (Views adopted on 24 November 2000), in UN doc.
GAOR, A/56/44,
pp. 184-185, para. 8.3.
63Ibid., p. 185, para. 8.4.
64Ibid., pp. 185-185, paras. 8.5 and 9.
65Ibid., p. 185, para. 8.7.
66Eur. Court HR, Case of Jabari v. Turkey, Judgment of 11 July 2000, para. 3. The text used is that found at
the Court’s web site:
www.echr.coe.int/
69Ibid., para. 18.
The European Court recalled its well established case law, according to which
“expulsion by a Contracting State may give rise to an issue under Article 3,
and hence engage the responsibility of that State under the Convention,
where substantial grounds have been shown for believing that the person
in question, if expelled, would face a real risk of being subjected to
treatment contrary to Article 3 in the receiving country. In these
circumstances, Article 3 implies the obligation not to expel the person in
question to that country.”70
Importantly, the Court added that
“having regard to the fact that Article 3 enshrines one of the most
fundamental values of a democratic society and prohibits in absolute terms
torture or inhuman or degrading treatment or punishment, a rigorous
scrutiny must necessarily be conducted of an individual’s claim that his or
her deportation to a third country will expose that individual to treatment
prohibited by Article 3.”71
In the case before it, the Court was “not persuaded that the authorities of the
respondent State conducted any meaningful assessment of the applicant’s claim,
including its arguability” and it consequently gave “due weight to the UNHCR’s
conclusion on the applicant’s claim in making its own assessment of the risk
which would
face the applicant if her deportation were to be implemented”; the UNHCR had
“interviewed the applicant and had the opportunity to test the credibility of her
fears and
the veracity of her account of the criminal proceedings initiated against her in
Iran by
reason of her adultery”.72 Lastly, the Court stated that it was “not persuaded that
the
situation in the applicant’s country [had] evolved to the extent that adulterous
behaviour
[was] no longer considered a reprehensible affront to Islamic law”, since adultery
by
stoning remained on the statute books and might be resorted to by the
authorities.73
Consequently, the Court found it “substantiated” that there was “a real risk of
the
applicant being subjected to treatment contrary to Article 3 if ... returned to Iran”
and that
her deportation to that country would constitute a violation of that article.74
4.3.3 Violence against women and the girl child in families and
the community in general
Violence, including sexual abuse of women and the girl child, is all too
common in families, schools and the community in general, and its existence is,
as seen
above, a clear breach of various provisions of international human rights law,
such as
the right to freedom from ill-treatment and the right to personal security.
Although
much of this violence takes place in the domestic sphere, Governments
have a
responsibility to act with due diligence to eradicate it.
*****
70Ibid., para. 38.
71Ibid., para. 39.
73Ibid., para. 41.
74Ibid., para. 42.
In this connection, the Committee on the Elimination of Discrimination
against Women has recommended that the States parties to the Convention on
the
Elimination of All Forms of Discrimination against Women “should take
appropriate
and effective measures to overcome all forms of gender-based violence, whether
by
public or private act” and that they should also, inter alia:
“ensure that laws against family violence and abuse, rape, sexual assault and
other gender-based violence give adequate protection to all women, and
respect their integrity and dignity. Appropriate protective and support
services should be provided for victims. Gender-sensitive training of
judicial and law enforcement officers and other public officials is essential
for the effective implementation of the Convention.”75
In accordance with its recommendations, the Committee requested Iraq, for
instance, to provide “a comprehensive picture with regard to violence against
women in
the State party, including information on legislation, statistical data on the types
and
incidence of violence against women and the responses to such violence by law
enforcement officials, the judiciary, social workers and health-care providers”. It
urged
the Government “to encourage and support the establishment of facilities for
women
victims of domestic violence, such as telephone hotlines and shelters for
battered
women, and to launch a zero-tolerance campaign on violence against women so
as to
raise awareness about the problem and the need to combat it effectively”.76
The Committee also urged the Government of the Republic of Moldova “to
place high priority on measures to address violence against women in the family
and in
society, and to recognize that such violence, including domestic violence,
constitutes a
violation of the human rights of women under the Convention”; the Committee
called
on the Government “to ensure that such violence constitutes a crime punishable
under
criminal law, that it is prosecuted and punished with the required severity and
speed,
and that women victims of violence have immediate means of redress and
protection”.77 It further recommended “that measures be taken to ensure that
public
officials, especially law enforcement officials and the judiciary, are fully
sensitized to all
forms of violence against women”; lastly, it invited the Government “to
undertake
awareness-raising measures, including a campaign of zero tolerance, to make
such
violations socially and morally unacceptable”.78
The Committee on the Elimination of Discrimination against Women also
expressed concern about violence against women in Lithuania, in particular
domestic
violence, and urged the Government to amend article 118 of the Criminal Code
“in
order explicitly to define rape as sexual intercourse without consent”; it further
urged
the Government “to continue to pay serious attention to domestic violence
against
women, including through ongoing training of police officials, future lawyers and
judges and through easy access to courts by the victims of domestic violence”.79
Lastly,
it recommended “the introduction of a specific law prohibiting domestic violence
Lawyers 473
Comments, p. 219, para. 24(a)
and (b).
77Ibid., p. 59, para. 102.
78Ibid., loc. cit.
79Ibid., p. 64, para. 151.
against women, which would provide for protection and exclusion orders and
access to
legal aid and shelters”.80
The increase in violence against women in Romania was also an issue of
concern to the Committee as well as “the absence of legislation criminalizing
domestic
violence, including marital rape, and the recognition of the defence of a so-called
‘reparatory marriage’ in the Criminal Code, which eliminates criminal liability of a
rapist
if the rape victim consents to marry him”; the Committee was also concerned
that there
was “no legislation concerning sexual harassment”.81
Lastly, the Committee expressed concern in the case of India about the
exposure of women “to the risk of high levels of violence, rape, sexual
harassment,
humiliation and torture in areas where there are armed insurrections”; it
therefore
recommended “a review of prevention of terrorism legislation and the Armed
Forces
Special Provisions Act ... so that special powers given to the security forces do
not
prevent the investigation and prosecution of acts of violence against women in
conflict
areas and during detention and arrest”.82
*****
The Human Rights Committee has also focused on violence against women in
the private sphere. With regard to Cambodia, for instance, the Committee
expressed
concern that marital rape was not an offence and that the authorities did not
provide
support for women complaining about domestic violence; the State party should
therefore, in its view, “introduce measures to enable women to seek effective
protection of the law in case of domestic violence”.83 The Committee also
expressed
concern “that violence against women and domestic violence in particular is on
the
increase in Costa Rica” and it recommended “that all necessary measures,
including the
enactment of appropriate legislation, be taken to protect women in these
areas”.84
The Committee expressed concern about the continued existence in
Venezuela “of a legal provision exempting a rapist from any penalty if he marries
the
victim”, adding that the State party “should immediately repeal this legislation,
which is
incompatible with articles 3, 7, 23, 26, 2(3) and 24 of the Covenant, particularly
taking
into account the early age at which girls can enter into marriage”.85 The same
concern
was expressed with regard to the legislation of Guatemala which, moreover,
requires a
women to be “honest” for the offence of rape to be held to have been
committed; the
Committee informed the State party that it should “immediately repeal this
legislation,
which is incompatible with articles 3, 23, 26 and 2(3) of the Covenant”.86
*****
80Ibid., loc. cit.
81Ibid., p. 80, para. 306.
82Ibid., p. 11, paras. 71-72. On the issue of “Violence against women perpetrated and/or condoned by the
State during times of
armed conflict (1997/2000)”, see, for example, UN doc. E/CN.4/2001/73, Violence against Women – Report
of the Special Rapporteur on
violence against women, its causes and consequences, Ms. Radhika Coomaraswamy, 45 pp.
84Ibid., p. 55, para. 281.
86Ibid., p. 97, para. 24.
The Committee on Economic, Social and Cultural Rights noted “with
concern” that the problem of domestic violence against women in Egypt “is not
being
sufficiently addressed and that marital rape is not criminalized”.87 With regard to
Mongolia, the Committee stated that it was “deeply concerned about the
adverse
effects of the prevailing traditional values and practices and of poverty on
women” and
it deplored “the lack of facilities and the inefficiency of remedies for victims of
domestic violence”, which was estimated to affect a third of the country’s
women; the
Committee urged the Government “to organize public campaigns to raise
awareness
about domestic violence, to criminalize spousal rape and to provide victims with
shelters and adequate remedies”.88 The “phenomenon of violence against
women,
including marital violence” was also a matter of concern in the case of
Portugal.89
*****
The European Court of Human Rights made an important ruling in the case
of X and Y v. the Netherlands regarding the duties of the Contracting States
to the
European Convention on Human Rights to provide victims of abuse
caused by
private individuals with “practical and effective protection”. The case
concerned
the impossibility of having criminal proceedings instituted against the alleged
perpetrator of a sexual assault carried out on a mentally handicapped girl, Miss
Y. The
alleged perpetrator was the son-in-law of the directress of the privately run
home for
mentally handicapped children where the girl was staying. The police took the
view that
Miss Y was incapable of filing a complaint herself and, as she was over 16 years
of age,
her father’s complaint could not be considered as a substitute; hence nobody
was legally
empowered to bring a criminal complaint on Miss Y’s behalf.90
The Court stated that:
“although the object of Article 8 is essentially that of protecting the
individual against arbitrary interference by the public authorities, it does
not merely compel the State to abstain from such interference: in addition
to this primarily negative undertaking, there may be positive obligations
inherent in an effective respect for private or family life ... These
obligations may involve the adoption of measures designed to secure
respect for private life even in the sphere of the relations of individuals
between themselves.”91
It then found that:
“the protection afforded by the civil law in the case of wrongdoing of the
kind inflicted on Miss Y is insufficient. This is a case where fundamental
values and essential aspects of private life are at stake. Effective deterrence
is indispensable in this area and it can be achieved only by criminal-law
provisions; indeed it is by such provisions that the matter is normally
regulated.”92
Lawyers 475
87UN doc. E/2001/22 /E/C.12/2000/21), p. 41, para. 162.
88Ibid., p. 55, para. 270, and p. 56, para. 281.
89Ibid., p. 72, para. 414.
90Eur. Court HR, Case of X and Y v. the Netherlands, Judgment of 26 March 1985, Series A, No. 91, pp. 8-9,
paras. 9-13.
91Ibid., p. 11, para. 23.
92Ibid., p. 13, para. 27.
Considering that, for persons in the situation of Miss Y, there was a
procedural obstacle to bringing criminal proceedings against the alleged
perpetrator of
an assault, the Court concluded that the Netherlands Criminal Code did not
provide
Miss Y “with practical and effective protection”; “taking account of the nature of
the
wrongdoing in question”, the Court concluded that she was a victim of a violation
of
article 8 of the European Convention on Human Rights.93
Another notable case in this regard is that of A v. the United Kingdom, which,
although it concerns the beating of a boy child by his stepfather, has equally
important
implications for the duty of States to protect the girl child. The applicant, who
was nine
years old at the relevant time, was “found by the consultant paediatrician ... to
have
been beaten with a garden cane which had been applied with considerable force
on
more than one occasion”; in the view of the Court, this treatment reached the
level of
severity prohibited by article 3 of the European Convention on Human Rights.94
The
question that had to be determined therefore was “whether the State should be
held
responsible, under Article 3, for the beating of the applicant by his stepfather”.95
The
Court considered:
“ that the obligation on the High Contracting Parties under Article 1 of the
Convention to secure to everyone within their jurisdiction the rights and
freedoms defined in the Convention, taken together with Article 3,
requires States to take measures designed to ensure that individuals within
their jurisdiction are not subjected to torture or inhuman or degrading
treatment or punishment, including such ill-treatment administered by
private individuals ... Children and other vulnerable individuals, in
particular, are entitled to State protection, in the form of effective
deterrence, against such serious breaches of personal integrity. ”96
Under English law, it was “a defence to a charge of assault on a child that the
treatment in question amounted to ‘reasonable chastisement’”, and it was “on
the
prosecution to establish beyond reasonable doubt that the assault went beyond
the
limits of lawful punishment”; although the applicant had been subjected to
treatment
considered to be of sufficient severity to fall within the scope of article 3 of the
Convention, his stepfather had been acquitted by the jury.97 In the Court’s
opinion,
therefore, the law did not provide adequate protection to the applicant and this
failure
constituted a violation of article 3 of the Convention.98
For more information on the duty of States to protect human rights, see
Chapter 15 below.
94Eur. Court HR, Case of A v. the United Kingdom, Judgment of 23 September 1998, Reports 1998-VI, p.
2699, para. 21.
95Ibid., p. 2699, para. 22.
97Ibid., pp. 2699-2700, para. 23.
98Ibid., p. 2700, para. 24.
4.4 Violence against women as crimes against

humanity and war crimes
In conclusion, it is important to point out in this context that, according to
both article 5(f) and (g) of the Statute of the International Tribunal for the Former
Yugoslavia and article 3(f) and (g) of the Statute of the International Tribunal for
Rwanda, torture and rape are considered to constitute a crime against
humanity
when committed against any civilian population in the course of an armed
conflict.
Moreover, pursuant to article 4 of its Statute, the International Tribunal for
Rwanda has
the power to prosecute persons committing or ordering to be committed serious
violations of article 3 common to the Geneva Conventions of 1949, including the
1977
Protocol Additional thereto. Article 4(e) and (h) specifies that these violations
shall
include “outrages upon personal dignity, in particular humiliating and degrading
treatment, rape, enforced prostitution and any form of indecent assault”,
including
threats to commit such acts.
According to article 7 of the 1998 Statute of the International Criminal Court,
the concept of a crime against humanity covers not only such acts as murder,
extermination, enslavement, torture and deportation or forcible transfer of
population
but also rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization “or any other form of sexual violence of comparable gravity” (art.
7(g)).
However, to constitute a “crime against humanity”, these acts must be
committed “as
part of a widespread or systematic attack directed against any civilian
population, with
knowledge of the attack”. Such acts may also constitute serious war crimes in
both
international and non-international armed conflicts (art. 8(2)(b)(xxii) and (e)(vi)
respectively).
For more information on the protection of human rights in times of crisis, see
Chapter 16 concerning “The Administration of Justice during States of
Emergency”.
Women have the right to freedom from torture and from cruel, inhuman
or degrading treatment or punishment at all times, including in times of
emergency.
Women deprived of their liberty must be treated with humanity and given
special protection against violence and sexual abuse.
Corporal punishment is prohibited by international law, also when
imposed on women for reasons of adultery or for having violated specific
dress codes.
A women must not be returned to a country where she runs a serious risk
of being subjected to torture or other treatment contrary to international
law.
Domestic and community violence against women is contrary to
international law. States have a legal duty to take immediate and
effective measures to eradicate all forms of gender-based violence in
society.
This duty implies, inter alia, that States must also provide adequate and
effective protection under criminal law to victims of violence by private
individuals.
Lawyers 477
5. Women’s Right to Freedom

from Slavery, the Slave Trade,
Forced and Compulsory
Labour, and Trafficking
Although it is beyond the scope of this Manual to examine the notions of
slavery, the slave trade, servitude, and forced and compulsory labour, it is
important for
the legal professions to know that there are international legal provisions
outlawing
these practices, which, contrary to what many people may think, still occur in
many
countries. Such practices are also often linked in many ways to trafficking in
women
and children and forced prostitution. The notions of slavery, the slave trade,
forced and
compulsory labour, and trafficking, including for purposes of servitude and
prostitution, are thus intricately interwoven in practice and difficulties may arise
when it
comes to applying the relevant legal principles. After reviewing the major legal
provisions, this section will give particular attention to the serious and
increasingly
widespread phenomenon of trafficking, which has become particularly acute in
Europe
since the collapse of the Soviet Union and the opening up of borders.
5.1.1 Slavery, the slave trade and servitude
Slavery is prohibited under all general human rights treaties (article 8(1) of
the International Covenant on Civil and Political Rights, article 5 of the African
Charter
on Human and Peoples’ Rights, article 6(1) of the American Convention on
Human
Rights, article 4(1) of the European Convention on Human Rights). The slave
trade is
expressly prohibited under article 8(1) of the Covenant, article 5 of the African
Charter
and article 6(1) of the American Convention. Servitude is outlawed by article
8(2) of
the Covenant, article 6(1) of the American Convention and article 4(1) of the
European
Convention.
These practices are further prohibited under the Slavery Convention, 1926, as
amended by the 1953 Protocol, and the Supplementary Convention on the
Abolition of
Slavery, the Slave Trade and Institutions and Practices Similar to Slavery, 1956.
While
the 1926 Convention deals with the prevention and suppression of slavery and
the slave
trade, the 1956 Convention is interesting in that it also, inter alia, expressly
deals with
institutions and practices such as debt bondage, serfdom and forced
marriages for
money. Article 1 requires States parties to take all practicable and necessary
legislative
and other measures to bring about progressively and as soon as possible the
complete
abolition or abandonment of the following institutions and practices:
“(a) Debt bondage, that is to say, the status or condition arising from a
pledge by a debtor of his personal services or of those of a person under his
control as security for a debt, if the value of those services as reasonably
assessed is not applied towards the liquidation of the debt of the length and
nature of those services are not respectively limited and defined;
(b) Serfdom, that is to say, the condition or status of a tenant who is by
law, custom or agreement bound to live and labour on land belonging to
another person and to render some determinate service to such other
person, whether for reward or not, and is not free to change his status;
(c) Any institution or practice whereby:
(i) A woman, without the right to refuse, is promised or given in
marriage on payment of a consideration in money or in kind to her parents,
guardian, family or any other person or group; or
(ii) The husband of a women, his family, or his clan, has the right to
transfer her to another person for value received or otherwise; or
(iii) A woman on the death of her husband is liable to be inherited
by another person;
(d) Any institution or practice whereby a child or young person under
the age of eighteen years is delivered by either or both of his natural parents
or by his guardian to another person, whether for reward or not, with a
view to the exploitation of the child or young person or of his labour.”
The right to freedom from slavery, the slave trade and servitude must be
ensured at all times and cannot be derogated from in public emergencies
(article 4(2)
of the International Covenant, article 27(2) of the American Convention and
article
15(2) of the European Convention).
5.1.2 Forced and compulsory labour
Forced and compulsory labour is expressly prohibited by three of the four
general human rights treaties, namely by article 8(3) of the International
Covenant on
Civil and Political Rights, article 6(2) of the American Convention and article 4(2)
of the
European Convention. Such practices are further outlawed by the ILO Forced
Labour
Convention, 1930 (No. 29) and the ILO Abolition of Forced Labour Convention,
1957
(No. 105). The three general human rights treaties and the 1930 ILO Convention
exclude from the definition of “forced and compulsory labour” such services as
are
required, for instance, in the course of military service, which form part of normal
civil
obligations or which can be exacted in cases of emergency or calamity. All these
prohibitions must be applied without discrimination to women.
5.1.3 Trafficking
Under article 1 of the 1949 Convention for the Suppression of the Traffic in
Persons and of the Exploitation of the Prostitution of Others, the States parties
agree
to punish any person who, to gratify the passions of another:
Lawyers 479
“(1) Procures, entices or leads away, for purposes of prostitution, another
person, even with the consent of that person;
(2) Exploits the prostitution of another person, even with the consent
of that person”.
The States parties also agree to punish any person who:
“(1) Keeps or manages, or knowingly finances or takes part in the
financing of a brothel;
(2) Knowingly lets or rents a building or other place or any part thereof
for the purpose of the prostitution of others”.
These offences are regarded as extraditable offences (arts. 8-9).
Furthermore, States parties are required, under article 6 of the Convention on
the Elimination of Discrimination against Women, to take all appropriate
measures,
including legislation, to suppress all forms of traffic in women and exploitation of
prostitution of women.
Another international treaty of potential relevance in this field is the Protocol
to Prevent, Suppress and Punish Trafficking in Persons, Especially
Women and
Children, supplementing the United Nations Convention against
Transnational
Organized Crime, which was adopted by the General Assembly on 15
November
2000 and opened for signature on 13 December 2000. This Protocol, like the
Convention itself, requires 40 ratifications to enter into force and cannot enter
into
force before the Convention (art. 17 of the Protocol). As of 15 November 2001,
only
four States had ratified the Convention (Monaco, Nigeria, Poland and Yugoslavia).
Lastly, article 35 of the Convention on the Rights of the Child stipulates that
“States Parties shall take all appropriate national, bilateral and multilateral
measures to
prevent the abduction of, the sale of or traffic in children for any purpose or in
any
form.” A final significant development with regard to trafficking in children,
including,
in particular, the girl child, is the Optional Protocol to the Convention on the
Rights of
the Child on the Sale of Children, Child Prostitution and Child Pornography, which
entered into force on 18 January 2002. Although the text of the Optional Protocol
does
not refer specifically to trafficking, the link between trafficking and the sale of
children,
child prostitution and child pornography is a direct one; bearing this reality in
mind, the
drafters of the Protocol hoped that it would prove to be an additional tool in the
fight
against trafficking and related exploitation of children.99 As of 8 February 2002,
the
Optional Protocol had been ratified by 17 States.
99UN doc. E/CN.4/2001/72, Traffic in women and girls, Report of the Secretary-General, p. 3, para 8.
5.2 The practice of slavery, forced and compulsory

labour, and trafficking in women
Overt or disguised forms of slavery, forced and compulsory labour, and
trafficking in women and children are unlawful practices that are a continuing
source of
concern to the international monitoring bodies.
In analysing legal obligations under article 8 of the International Covenant,
the Human Rights Committee emphasized that States parties should inform it of
measures taken “to eliminate trafficking of women and children, within the
country or
across borders, and forced prostitution. They must also provide information on
measures taken to protect women and children, including foreign women and
children,
from slavery, disguised, inter alia, as domestic or other kinds of personal service.
States
parties where women and children are recruited, and from which they are taken,
and
States parties where they are received should provide information on measures,
national or international, which have been taken in order to prevent the violation
of
women’s and children’s rights.”100
The Human Rights Committee expressed deep concern about information on
trafficking in women to Venezuela, especially from neighbouring countries, and
the
lack of information from the delegation of the State party on the extent of the
problem
and action to combat it.101 The Committee also noted that Croatia had “a variety
of
measures at its disposal in its criminal law to combat the practice of trafficking of
women into and through its territory, particularly for purposes of sexual
exploitation”;
it regretted, however, that, despite widespread reports of the extent and
seriousness of
the practice, it had not been provided with information on actual steps taken to
prosecute the persons involved. The State party should therefore
“take appropriate steps to combat this practice, which constitutes a
violation of several Covenant rights, including the right under article 8 to
be free from slavery and servitude”.102
The Human Rights Committee welcomed the appointment in the
Netherlands “of an independent National Rapporteur on Trafficking in Persons
endowed with appropriate investigative and research powers”, but it nonetheless
remained concerned “at on-going reports of sexual exploitation of significant
numbers
of foreign women in the State party”, since such exploitation raised issues under
articles
3, 8 and 26 of the Covenant; the State party should therefore ensure that the
National
Rapporteur was “equipped with all means necessary to achieve real and
concrete
improvement in this area”.103 The Committee was even more explicit with regard
the
situation of trafficking in the Czech Republic, which gave rise to deep concern
since the
State party was both a country of origin and transit and a recipient country. It
recommended that:
Lawyers 481
100General Recommendation No. 28 (Article 3 – Equality of rights between men and women), United
Nations Compilation of
General Comments, p. 170, para. 12.
102Ibid., p. 67, para. 12.
103Ibid., p. 79, para. 10.
“The State party should take resolute measures to combat this practice,
which constitutes a violation of several Covenant rights, including article 3
and the right under article 8 to be free from slavery and servitude. The State
party should also strengthen programmes aimed at providing assistance to
women in difficult circumstances, particularly those coming from other
countries who are brought into its territory for the purpose of prostitution.
Strong measures should be taken to prevent this form of trafficking and to
impose sanctions on those who exploit women in this way. Protection
should be extended to women who are the victims of this kind of
trafficking so that they may have a place of refuge and an opportunity to
give evidence against the person responsible in criminal or civil
proceedings. The Committee wishes to be informed of the measures taken
and their result.”104
*****
pointed out that poverty and unemployment increase opportunities for trafficking
in
women.105 New forms of sexual exploitation have emerged in addition to the
established forms of trafficking “such as sex tourism, the recruitment of
domestic
labour from developing countries to work in developed countries, and organized
marriages between women from developing countries and foreign nationals.
These
practices are incompatible with the equal enjoyment of rights by women and
with
respect for their rights and dignity. They put women at special risk of violence
and
abuse.”106
The Committee further notes that “poverty and unemployment force many
women, including young girls, into prostitution. Prostitutes are especially
vulnerable to
violence because their status, which may be unlawful, tends to marginalize
them. They
need the equal protection of laws against rape and other forms of violence.”107
The Committee points out in this regard that “wars, armed conflicts and the
occupation of territories often lead to increased prostitution, trafficking in women
and
sexual assault of women, which require specific protective and punitive
measures.”108
As women are “particularly vulnerable in times of internal or international armed
conflicts”, the Human Rights Committee has also recommended that States
parties to
the International Covenant on Civil and Political Rights inform it “of all measures
taken
during these situations to protect women from rape, abduction and other forms
of
gender-based violence”.109
104Ibid., p. 86, para. 13. Trafficking is also a matter of serious concern in the Democratic People’s Republic
of Korea, p. 104,
para. 26.
106Ibid., loc. cit.
107Ibid., p. 218, para. 15.
108Ibid., p. 218, para. 16.
The Committee on the Elimination of Discrimination against Women urged
Uzbekistan to provide more information and data on the situation of trafficking of
women and girls and on progress made in that area; it considered “that
comprehensive
measures should be developed and introduced in order to address the problem
effectively, including prevention and reintegration and the prosecution of those
responsible for trafficking”.110 The Committee also expressed concern about
non-European women in the Netherlands who have been trafficked, “who fear
expulsion to their countries of origin and who might lack the effective protection
of
their Government on their return”. It urged the Government of the Netherlands
“to
ensure that trafficked women are provided with full protection in their countries
of
origin or to grant them asylum or refugee status”.111
*****
The Committee on Economic, Social and Cultural rights welcomed the
adoption of the 1998 immigration bill in Italy, which grants one-year
residence/work
permits to women who have been the victims of trafficking and who denounce
their
exploiters, and the criminalization of trafficking of migrants under the Penal
Code.
However, the Committee remained concerned at the extent of trafficking of
women
and children in Italy.112
Women have the right to freedom from slavery, the slave trade, servitude,
and forced and compulsory labour.
Women may not therefore be subjected to any kind of slavery or to
similar practices such as prostitution and domestic or other kinds of
service that may be disguised slavery or servitude.
Trafficking in women and the girl child is strictly prohibited by
international law.
Slavery, the slave trade, servitude, forced and compulsory labour, and
trafficking in women and children, including the girl child, are practices
that must be penalized in national law, and those responsible for such
illegal acts must be rigorously prosecuted and punished by the national
authorities.
States have a legal duty to take immediate, appropriate and effective
measures to combat these unlawful practices at all levels, including
through international cooperation, and to provide adequate help and
protection to victims, including foreign nationals.
Lawyers 483
111Ibid., p. 66, paras. 211-212.
112UN doc. E/2001/22 (E/C.12/2000/21), p. 34, para. 109, and p. 36, para. 121.
6. The Right to Equality in respect

of Marriage
6.1 The right of intending spouses to marry freely
and to found a family
The right of men and women of marriageable age to marry and found a family
is recognized by article 23(2) of the International Covenant on Civil and Political
Rights, article 17(2) of the American Convention on Human Rights (which uses
the
term “to raise a family” instead of “to found”) and article 12 of the European
Convention on European Rights. Article 23(3) of the International Covenant and
article 17(3) of the American Convention on Human Rights further stipulate that
“no
marriage shall be entered into without the free and full consent of the intending
spouses”. Although the European text does not expressly refer to the fact that
marriage
must be freely entered into, this is implied in the term “right to marry”
(emphasis
added), which must also be interpreted in the light of the non-discrimination
provision
contained in article 14 of the Convention so as to secure equality before the law
between women and men in the enjoyment of this right.
Article 16 of the Convention on the Elimination of All Forms of
Discrimination against Women sets out the States parties’ duties with regard to
the
elimination of “discrimination against women in all matters relating to marriage
and
family relations”. They are required to ensure, on a basis of equality of men and
women,
inter alia, the same right to enter into marriage and the same right freely to
choose a
spouse and to enter into marriage only with their free and full consent (art. 16(1)
(a) and
(b)).
Another international treaty of interest in this regard is the Convention on
Consent to Marriage, Minimum Age for Marriage and Registration of
Marriages
which was adopted by the United Nations General Assembly in 1962 and entered
into
force on 9 December 1964. The Convention contains, inter alia, the following
legal
undertakings:
_ “No marriage shall be legally entered into without the full and free consent of
both
parties, such consent to be expressed by them in person after due publicity and
in
the presence of the authority competent to solemnize the marriage and of
witnesses,
as prescribed by law” (art. 1(1));
_ “States parties ... shall take legislative action to specify a minimum age for
marriage.
No marriage shall be legally entered into by any person under this age, except
where
a competent authority has granted a dispensation as to age, for serious reasons,
in
the interest of the intending spouses” (art. 2).
*****
The factors that may affect a woman’s capacity to make an informed and
uncoerced decision to marry include, as will be seen below, an unduly low
minimum age
for women. As indicated by the Human Rights Committee with regard to the
interpretation of article 23 of the International Covenant, other factors that may
undermine a woman’s “free and full consent to marriage” are “the existence of
social
attitudes which tend to marginalize women victims of rape and put pressure on
them to
agree to marriage” as well as “laws which allow the rapist to have his criminal
responsibility extinguished or mitigated if he marries the victim”.113 The
Committee
also notes that “the right to choose one’s spouse may be restricted by laws and
practices
that prevent the marriage of a woman of a particular religion to aman who
professes no
religion or a different religion.”114
*****
On the issue of free consent, the Committee on the Elimination of
Discrimination against Women stresses that “a woman’s right to choose a
spouse and
enter freely into marriage is central to her life and to her dignity and equality as
a human
being.”115 However, while most countries reported that national constitutions and
laws
comply with the Convention on the Elimination of All Forms of Discrimination
against Women, “custom, tradition and failure to enforce these laws in reality
contravene the Convention”. An examination of States parties’ reports disclosed
that
there were countries
_ that permitted forced marriages or remarriages on the basis of custom,
religious
beliefs or the ethnic origins of particular groups of people;
_ that allowed a woman’s marriage to be arranged for payment or preferment;
and
_ where poverty forced women to marry foreign nationals for financial
security.116
The Committee adds in this context that “a women’s right to choose when, if,
and whom she will marry must be protected by law” and subject only to
“reasonable
restrictions based for example on a woman’s youth or consanguinity with her
partner”.117
*****
The Committee on the Elimination of Racial Discrimination expressed
particular concern “at section 10(2)(c) of the Immigration Act of the Laws of
Tonga,
according to which the right to marriage between a Tongan and a non-Tongan is
conditioned by the written consent of the Principal Immigration Officer”, a
requirement that might constitute a breach of article 5(d) of the International
Convention on the Elimination of All Forms of Racial Discrimination, which, inter
alia,
guarantees enjoyment of the right to marriage and choice of spouse, without
distinction
as to race, colour, or national or ethnic origin.118
*****
Lawyers 485
114Ibid., loc. cit.
115Ibid., General Recommendation No. 21 (Equality in marriage and family relations), p. 226, para. 16.
116Ibid., p. 226, paras. 15-16.
117Ibid., p. 226, para. 16.
The Committee on Economic, Social and Cultural Rights was “disturbed
about the reassertion of traditional attitudes towards women in Kyrgyz society”
and
noted in this connection with deep concern “the re-emergence of the old
tradition of
bride kidnapping”. It recommended that the State party continue more actively
to
implement the law with regard to this phenomenon.119
6.1.1 Polygamous marriages
According to the Human Rights Committee, “equality of treatment with
regard to the right to marry implies that polygamy is incompatible with this
principle.
Polygamy violates the dignity of women. It is an inadmissible discrimination
against
women. Consequently, it should be definitely abolished wherever it continues to
exist.”120 With regard to the situation in Gabon, the Committee reiterated that
“polygamy is incompatible with equality of treatment with regard to the right to
marry.”
The Government must “ensure that there is no discrimination based on
customary law
in matters such as marriage”; polygamy “must be abolished” and the relevant
article of
the Civil Code repealed.121
*****
stated that polygamous marriage “contravenes a woman’s right to equality with
men,
and can have such serious emotional and financial consequences for her and her
dependants that such marriages ought to be discouraged and prohibited”;
countries
which permit polygamous marriage in spite of constitutionally guaranteed equal
rights
thus violate not only the constitutional rights of women but also article 5(a) of
the
Convention on the Elimination of All Forms of Discrimination against Women,
which
requires States parties to modify the social and cultural patterns of conduct of
men and
women in order to eliminate gender-based discrimination.122 The Committee
therefore
expressed concern regarding the continued legal authorization of polygamy in
Egypt
and urged the Government to take measures to prevent the practice in
accordance with
its General Recommendation No. 21.123 It also recommended that Burkina Faso
“work
towards the elimination of the practice of polygamy” and that the State party
“embark
on a comprehensive public effort ... to change existing attitudes regarding
polygamy,
and in particular to educate women on their rights and how to avail themselves
of these
rights”.124
119UN doc. E/2001/22 /E/C.12/2000/21), p. 64, para. 344, and p. 65, para. 358.
120General Comment No. 28 (Article 3 – Equality of rights between men and women), UN Compilation of
General Comments,
pp. 172-173, para. 24.
121UN doc. GAOR, A/56/40 (vol. I), pp. 42-43, para. 9.
122General Recommendation No. 21 (Equality in marriage and family relations), United Nations Compilation
of General Comments,
p. 226, para. 14.
6.1.2 The marriageable age
Although the minimum age for marriage is one factor that may prevent
women from being able to take the decision to marry freely, the international
treaties do
not specify a minimum age. However, article 16(2) of the Convention on the
Elimination of All Forms of Discrimination against Women states that:
“2. The betrothal and marriage of a child shall have no legal effect, and
all necessary action, including legislation, shall be taken to specify a
minimum age for marriage and to make the registration of marriages in an
official registry compulsory.”
*****
Interpreting article 23 of the International Covenant on Civil and Political
Rights, the Human Rights Committee states that the article:
“does not establish a specific marriageable age either for men or for
women, but that age should be such as to enable each of the intending
spouses to give his or her free and full personal consent in a form and
under conditions prescribed by law.”125
Such provisions must furthermore “be compatible with the full exercise of the
other rights guaranteed by the Covenant” such as the right to freedom of
thought,
conscience and religion.126
The Committee noted with regard to Venezuela that the minimum
marriageable age is 14 for girls and 16 for boys and that “such age may be
lowered
without any limits for girls in case of pregnancy or childbirth,” a matter that
raised
problems with respect to the fulfilment by the State party of its obligation under
article
24, paragraph 1, to protect minors. Moreover, in the Committee’s view, marriage
at
such an early age does not appear to be compatible with article 23 of the
Covenant,
“which requires the free and full consent of the intending spouses”.127 The
Committee
also questioned the compatibility with the Covenant of the legislation on the
minimum
marriageable age in the Syrian Arab Republic, where the permissible age is 17
years for
girls and 18 for boys, an age that “can be further reduced by a judge to 15 years
for boys
and 13 for girls with the father’s consent”.128 As this legislation was felt to pose
problems of compliance with the Covenant, the State party was asked to amend
its
legislation to bring it into line with the provisions of articles 3, 23 and 24.129
Monaco,
where the legal age for marriage is 15 years for girls and 18 years for boys, was
also asked
“to amend its legislation to ensure that girls and boys are treated equally by
making the
legal age of marriage 18 years, regardless of sex”.130
*****
Lawyers 487
126Ibid., loc. cit.
128Ibid., p. 74, para. 20.
129Ibid., loc. cit.
130Ibid., p. 91, para. 12.
As pointed out by the Committee on the Elimination of Discrimination
against Women, article 16(2) of the Convention on the Elimination of All Forms of
Discrimination against Women, as well as the relevant provisions of the
Convention on
the Rights of the Child, “preclude States parties from permitting or giving validity
to a
marriage between persons who have not attained their majority”; in the
Committee’s
view, “the minimum age for marriage should be 18 years for both men and
women.”131
As men and women “assume important responsibilities” when they marry,
“marriage
should not be permitted before they have attained full maturity and capacity to
act.”132
Laws which provide for different ages for marriage for men and women should be
abolished.133
expressed concern about the high number of early marriages of girls in Egypt,
especially
in rural areas, and recommended “that the Government amend the law on the
legal age
of marriage to prevent early marriage, in line with its obligations as a State party
to the
Convention”.134 With regard to the Republic of Moldova, it expressed concern “at
the
differential ages of marriage established in the Family Code for boys and girls
and the
legal recognition of marriages of girl children”, which was not in conformity with
article
16(2) of the Convention. It therefore recommended “that the Government take
action
to bring legislation on the marriage age for women and men into full conformity
with
the Convention, taking into consideration ... general recommendation 21”.135
Lastly,
the Committee urged the Maldives “to introduce minimum age of marriage laws
and
other programmes to prevent early marriage, in line with the obligations of the
Convention”.136
6.1.3 Other de jure and de facto impediments to the right to
marry freely
The Human Rights Committee expressed concern that marriages in
Cambodia were decided by the parents and urged the State party to take steps
to ensure
respect for laws prohibiting marriage without the full and free consent of the
spouses.137
It also held that the absence of divorce under Chilean law might amount to a
violation of article 23(2) of the Covenant, according to which men and women of
marriageable age have the right to marry and found a family. It left married
women
“permanently subject to discriminatory property laws ... even when a marriage
has
broken down irretrievably”.138
*****
pp. 229-230, para. 36.
132Ibid., p. 229, para. 36.
133Ibid., p. 230, para. 38.
135UN doc. GAOR, A/55/38, pp. 60-61, paras. 113-114.
137UN doc. GAOR, A/54/40/ (vol. I), p. 60, para. 309.
138Ibid., p. 46, para. 213.
The Committee on the Elimination of Racial Discrimination noted “with
approval” when examining the fifteenth and sixteenth periodic reports of Cyprus
“that
a draft marriage law, allowing marriage between a Greek Orthodox Christian and
a
Muslim of Turkish origin [had] been approved by the Council of Ministers and laid
before the House of Representatives for enactment”.139 The prohibition of
marriages
between persons of different religious faiths would not only constitute a violation
of
the right to marry freely but also of the right to freedom of religion.
*****
The Committee on the Elimination of Discrimination against Women urged
the Democratic Republic of the Congo to enact legislation to prohibit “traditional
customs and practices, which are in violation of women’s fundamental rights,
such as
dowry, the levirate, polygamy [and] forced marriage”.140
6.1.4 Restrictions on remarriage
The Human Rights Committee urged Venezuela, in order to comply with its
obligations under articles 2, 3 and 26 of the International Covenant on Civil and
Political Rights, “to amend all laws that still discriminate against women,
including
those relating to adultery and the ban on marriage for 10 months following the
dissolution of a previous marriage”.141 With regard to Japan, the Committee
stated that
the six-month ban on remarriage by women following the dissolution or
annulment of
marriage was incompatible with articles 2, 3 and 26 of the Covenant.142 The
Committee
on the Elimination of Discrimination against Women stated that the Luxembourg
law
according to which a widow or divorced women must wait for 300 days before
she can
remarry appeared “anachronistic”.143
*****
In the case of F. v. Switzerland, the applicant complained that the three-year
prohibition on remarriage imposed on him by the Lausanne District Civil Court
was a
violation of article 12 of the European Convention on Human Rights. In its
judgment,
the European Court of Human Rights pointed out that the exercise of the right of
a
man and a women to marry and found a family guaranteed by article 12 “gives
right to
personal, social and legal consequences”; it is a right that
“is ‘subject to the national laws of the Contracting States’, but ‘the
limitations thereby introduced must not restrict or reduce the right in such
a way or to such an extent that the very essence of the right is impaired’.”144
Lawyers 489
144Eur. Court HR, Case of F. v. Switzerland, judgment of 18 December 1987, Series A, No. 128, p. 16, para.
32.
The Court then pointed out that:
“In all the Council of Europe’s Member States, these ‘limitations’ appear as
conditions and are embodied in procedural or substantive rules. The
former relate mainly to publicity and the solemnisation of marriage, while
the latter relate primarily to capacity, consent and certain impediments.”145
After lengthy reasoning, in the course of which the Court noted that a waiting
period no longer exists in the other Contracting States and recalled that “the
Convention must be interpreted in the light of present-day conditions”, it
concluded
that “the disputed measure, which affected the very essence of the right to
marry, was
disproportionate to the legitimate aim pursued” and therefore violated article 12
of the
Convention.146
6.1.5 Registration of marriages
Under article 3 of the Convention on Consent to Marriage, Minimum Age for
Marriage and Registration of Marriages, the States parties undertake to have all
marriages registered “in an appropriate official register by the competent
authority”.
According to article 16(2) of the Convention on the Elimination of All Forms of
Discrimination against Women, States parties have a legal duty to take “all
necessary
action ...to make the registration of marriages in an official registry compulsory”.
There
are no comparable provisions in the other human rights treaties.
stated with regard to article 16(2) that States parties “should also require the
registration
of all marriages whether contracted civilly or according to custom or religious
law. The
State can thereby ensure compliance with the Convention and establish equality
between partners, a minimum age for marriage, prohibition of bigamy and
polygamy
and the protection of the rights of children.”147 The Committee expressed
concern
“that India has not yet established a comprehensive and compulsory system of
registration of births and marriages”; “inability to prove those important events
by
documentation prevents effective implementation of laws that protect girls from
sexual
exploitation and trafficking, child labour and forced or early marriage.”148
*****
On this issue the Human Rights Committee has merely accepted, under article
23 of the International Covenant on Civil and Political Rights, that “for a State to
require that a marriage, which is celebrated in accordance with religious rights,
be
conducted, affirmed or registered also under civil law is not incompatible with
the
Covenant.”149
145Ibid., loc. cit.
146Ibid., p. 16, para. 33, and p. 19, para. 40. In the course of its reasoning the Court recognized “that
stability of marriage is a
legitimate aim which is in the public interest”, but it doubted “whether the particular means used were
appropriate for achieving that
aim”, p. 17, para. 36.
p. 230, para. 39.
6.1.6 Meaning of the right to found a family
As seen above, the right to found a family is guaranteed by article 23(2) of the
International Covenant on Civil and Political Rights and article 17(2) of the
American
Convention on Human Rights. Article 16(1)(e) of the Convention on the
Elimination
of All Forms of Discrimination against Women requires States parties to ensure,
“on a
basis of equality of men and women”, “the same rights to decide freely and
responsibly
on the number and spacing of their children and to have access to the
information,
education and means to enable them to exercise these rights”.
*****
According to the Human Rights Committee, article 23(2) of the International
Covenant “implies, in principle, the possibility to procreate and live together.
When
States parties adopt family planning policies, they should be compatible with the
provisions of the Covenant and should, in particular, not be discriminatory or
compulsory.”150 In the Committee’s view, the possibility to live together “implies
the
adoption of appropriate measures, both at the internal level and as the case may
be, in
cooperation with other States, to ensure the unity or reunification of families,
particularly when their members are separated for political, economic or similar
reasons”.151
*****
The Committee on the Elimination of Discrimination against Women states
that the reasons why “women are entitled to decide on the number and spacing
of their
children” under article 16(1)(e) of the Convention on the Elimination of All Forms
of
Discrimination against Women are that “the responsibilities that [they] have to
bear
and raise children affect their right of access to education, employment and
other
activities related to their personal development. They also impose inequitable
burdens
of work on women. The number and spacing of their children have a similar
impact on
women’s lives and also affect their physical and mental health, as well as that of
their
children.”152 The Committee further expresses the view that “decisions to have
children or not, while preferably made in consultation with spouse or partner,
must not
nevertheless be limited by spouse, parent, partner or Government,” for example
through forced pregnancies, abortions or sterilization.153
*****
With regard to compulsory family planning, the Human Rights Committee
expressed concern about reports of forced sterilization in Peru, “particularly of
indigenous women in rural areas and women from the most vulnerable social
sectors”.
It followed that the State party “must take the necessary measures to ensure
that
Lawyers 491
150Ibid., p. 138, para. 5.
151Ibid., loc. cit.
p. 227, para. 21.
153Ibid., p. 227, para. 22.
persons who undergo surgical contraception are fully informed and give their
consent
freely”.154 On similar allegations concerning the mountain ethnic minority women
in
Viet Nam and their rejection by the State party, the Committee on the
Elimination of
Racial Discrimination simply stated that it would welcome information “on the
impact
of its population-planning policies on the enjoyment of reproductive rights by
persons
belonging to such minorities”.155 The latter Committee has made it clear that
“racial
discrimination does not always affect women and men equally or in the same
way”. It
mentions in this connection “the coerced sterilization of indigenous women” as a
form
of racial discrimination that “may be directed towards women specifically
because of
their gender”. The Committee will therefore endeavour in its work “to take into
account gender factors or issues which may be interlinked with racial
discrimination”.156
Women have the right to enter into marriage with their full and free
consent on a basis of equality with men. Forced marriages are prohibited
by international law and must be outlawed at the national level. The
same applies to dowry and other similar traditions.
Traditions, customs and religious beliefs cannot therefore be allowed to
justify forced marriages under international law.
Similarly, polygamy is prohibited under international law since it violates
the principle of equality between women and men.
If set too low, the legal marriageable age may violate the principle of free
consent; the legal age for marriage should preferably be 18 years for both
men and women.
The non-existence of divorce under national law violates the right to
marry and found a family. Temporary bans on remarriage are contrary to
international law.
A record of all marriages, whether civil or religious, should be kept in an
official registry. Such registration is, inter alia. indispensable in order to
prevent forced marriages, bigamy and polygamy.
The right to found a family means, inter alia, that women are entitled to
decide on the number and spacing of their children, preferably in
consultation with their partner. Compulsory family planning such as
forced sterilization is prohibited under international law.
156General Recommendation No. XXV (Gender-related dimensions of racial discrimination), United Nations
Comments, p. 194, paras. 1-3.
6.2 Equality of rights in terms of nationality laws

The Convention on the Nationality of Married Women was adopted by
the United Nations General Assembly in 1957 and entered into force on 11
August
1958. States parties agree under this Convention:
_ “that neither the celebration nor the dissolution of a marriage between one of
its
nationals and an alien, nor the change of nationality by the husband during
marriage,
shall automatically affect the nationality of the wife”(art. 1);
_ “that neither the voluntary acquisition of the nationality of another State nor
the
renunciation of its nationality by one of its nationals shall prevent the retention
of its
nationality by the wife of such national” (art. 2);
_ “that the alien wife of one of its nationals may, at her request, acquire the
nationality
of her husband through specially privileged naturalization procedures; the grant
of
such nationality may be subject to such limitations as may be imposed in the
interests of national security or public policy” (art. 3(1)).
On the question of equal rights with respect to nationality, article 9 of the
Convention on the Elimination of All Forms of Discrimination against Women
stipulates that:
“1. States Parties shall grant women equal rights with men to acquire,
change or retain their nationality. They shall ensure in particular that
neither marriage to an alien nor change of nationality by the husband
during marriage shall automatically change the nationality of the wife,
render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect
to the nationality of their children.”
Although article 23 of the International Covenant on Civil and Political Rights
does not explicitly refer to the right of equality in terms of nationality laws, the
Committee has stated that “no sex-based discrimination should occur in respect
of the
acquisition or loss of nationality by reason of marriage.”157
Article 23(1) of the Covenant entitles the family to “protection by society and
the State” and it follows from articles 2(1), 3 and 26 of the Covenant that “such
protection must be equal, that is to say not discriminatory, for example on the
basis of
sex”.158 Where legal restrictions on access to Mauritius were imposed on foreign
husbands of Mauritian women but not on foreign spouses of Mauritian men, the
Human Rights Committee concluded that the legislation was discriminatory with
respect to Mauritian women and could not be justified by security requirements;
there
was consequently a violation of articles 2(1), 3 and 26 of the Covenant in
conjunction
with article 23 thereof in so far as the three married co-authors were
concerned.159 The
impugned legislation implied that only the wives of Mauritian men would have
the right
Lawyers 493
157Ibid., General Comment No. 19 (art. 23), p. 138, para. 7.
158Communication No. 35/1978, Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius
(Views adopted on 9 April
1981), in UN doc. CCPR/C/OP/1, Selected Decisions under the Optional Protocol (Second to sixteenth
sessions), p. 71, para. 9.2 (b) 2 (ii) 2.
159Ibid., p. 71, paras. 9.2 (b) 2 (ii) 3 and 4.
of free access to Mauritius and enjoy immunity from deportation, while foreign
husbands had to apply to the Minister of the Interior for a residence permit and,
in case
of refusal, would have no possibility to seek redress before a court of law.160 This
case
therefore also violated articles 2(1) and 3 of the Covenant in conjunction with
article
17(1), which inter alia guarantees the right to a family. The Human Rights
Committee
noted that the law “made an adverse distinction based on sex” which affected
the
alleged victims in their enjoyment of one of their rights; as no “sufficient
justification”
for this difference had been given, the aforementioned provision had been
violated.161
*****
As pointed out by the Committee on the Elimination of Discrimination
against Women, nationality is “critical to full participation in society”, since
“without
status as nationals or citizens, women are deprived of the right to vote and to
stand for
public office and may be denied access to public benefits and a choice of
residence.”162
In its view, “nationality should be capable of change by an adult women and
should not
be arbitrarily removed because of marriage or dissolution of marriage or because
her
husband or father changes his nationality.”163
The Committee recommended to Guinea “that female and male spouses who
marry foreigners be treated equally in regulations governing nationality” and
urged the
Government to ensure that the concept of jus sanguinis is applied “to ensure
that
children of mixed parentage born outside the country can acquire nationality
through
their Guinean mother”.164 It was also concerned that “Jordanian nationality law
prevents a Jordanian woman from passing on her nationality to her children if her
husband is not Jordanian”, a situation that it characterized as “anachronistic”.165
The same Committee was also concerned that “Iraq’s nationality law, which is
based on the principle that the members of a family should all have the same
nationality
and that none should have dual nationality or lose their nationality, does not
grant
women an independent right to acquire, change or retain their nationality or to
pass it
on to their children.” It therefore recommended that the Government withdraw
its
reservations to articles 2(f) and (g) as well as articles 9 and 16 of the Convention
on the
Elimination of All Forms of Discrimination against Women so as to ensure full
implementation thereof.166
*****
160Ibid., p. 69, para. 7.2.
161Ibid., p. 70, para. 9.2 (b) 2 (i) 8.
p. 223, para. 6.
163Ibid., loc. cit.
164UN doc. GAOR, A/56/38, p. 58, para. 125; see also regarding Singapore, p. 54, para. 75.
165UN doc. GAOR, A/55/38, p. 19, para. 172. The Committee on Economic, Social and Cultural Rights
expressed concern with
regard to the same law; see UN doc. E/2001/22 (E/C.12/2000/21), p. 50, para. 234.
The Human Rights Committee, concerned at the discriminatory legal status of
women as regards the transmission of Monegasque nationality, recommended
that
Monaco “adopt legislation giving men and women the same right to transmit
nationality to children”. The problem raised concerns under articles 3 and 26 of
the
Covenant.167
*****
concern “at the nationality law, which prevents an Egyptian mother married to a
foreigner from passing on her nationality to her children”.168 The same
Committee
expressed satisfaction at the amendment of the 1967 Citizenship Law in Cyprus,
“which eradicates discrimination in marriage to foreigners”. As a result of the
amendment, the right of an alien spouse to acquire the citizenship of the Cypriot
spouse
is recognized for both spouses, as is “the equal right of both spouses to transmit
citizenship to their children”.169 It also welcomed the 1998 amendment to
Icelandic
legislation, which addressed “the unequal rights of men and women with regard
to the
naturalization of their children, and the elimination of the requirement to adopt
an
Icelandic patronym as a condition for naturalization”.170
For more examples of gender discrimination, see Chapter 13 of this Manual.
6.3 The equal right to a name
Under article 16(1)(g) of the Convention on the Elimination of All Forms of
Discrimination against Women, State parties are legally required to ensure, “on a
basis
of equality of men and women”, “the same personal rights as husband and wife,
including the right to choose a family name”. According to the Committee on the
Elimination of Discrimination against Women, this provision means that “each
partner
should have the right to choose his or her name, thereby preserving individuality
and
identity in the community and distinguishing that person from other members of
society. When by law or custom a woman is obliged to change her name on
marriage or
its dissolution, she is denied these rights.”171
*****
The Human Rights Committee has stated, with respect to article 23 of the
International Covenant on Civil and Political Rights, that “the right of each
spouse to
retain the use of his or her original family name or to participate on an equal
basis in the
choice of a new family name should be safeguarded”172 and that “States parties
should
Lawyers 495
168UN doc. GAOR, A/56/18, p. 52, para. 288. The Committee on Economic, Social and Cultural Rights
expressed concern with
regard to the same law (UN doc. E/2001/22 (E/C.12/2000/21), p. 40, para. 159), as did the Committee on the
Elimination of
Discrimination against Women (UN doc. GAOR, A/56/38, p. 35, para. 330).
170Ibid., p. 33, para. 150.
p. 228, para. 24.
172Ibid., General Comment No. 19 (Article 23), p. 138, para. 7.
ensure that no sex-based discrimination occurs in respect of ... the right of each
spouse
to retain the use of his or her original family name or to participate on an equal
basis in
the choice of a new family name.”173 States Parties must also ensure “the
capacity to
transmit to children the parents’ nationality” on a non-discriminatory basis.174
*****
expressed concern “that Jamaica’s passport law provides that a married women
may
keep her maiden name on her passport only if she insists or for professional
reasons
and that, in those cases, a note would be entered in her passport with the name
of her
husband and the fact of her marriage”. The Committee called on the
Government to
bring its passport law into line with article 16(1)(g) of the Convention on the
Elimination of All Forms of Discrimination against Women.175 The Committee
believes that the Netherlands new Law on Names violates the same provision,
particularly inasmuch as it grants the father the ultimate decision in giving a
child a
name when the parents cannot agree. The Committee therefore asked the
Government
to make the law consistent with the Convention.176
Under international law, women and men have equal rights in terms of
nationality laws. This means that female and male spouses who marry
foreigners must be treated equally and have equal rights to transmit their
nationality to their children.
Under international law, women and men have the same right to choose a
family name.
6.4 Equal rights and responsibilities of spouses as to
marriage, during marriage and at its dissolution
6.4.1 Relevant legal provisions
States parties are required, under article 23(4) of the International Covenant
on Civil and Political Rights, to take appropriate steps “to ensure equality of
rights and
responsibilities of spouses as to marriage, during marriage and at its
dissolution”.
Article 17(4) of the American Convention on Human Rights stipulates in this
regard
that the “States Parties shall take appropriate steps to ensure the equality of
rights and
the adequate balancing of responsibilities of the spouses as to marriage, during
marriage, and in the event of its dissolution.” Article 5 of Protocol No. 7 to the
European Convention on Human Rights states that “spouses shall enjoy equality
of
rights and responsibilities of a private law character between them, and in their
relations
174Ibid., loc. cit.
176Ibid., p. 67, paras. 223-224.
with their children, as to marriage, during marriage and in the event of its
dissolution.”
All three treaties accept that special provision should be made for children in the
event
of dissolution of the marriage. Under the more detailed provisions of article 16 of
the
States
parties are required to ensure, “on a basis of equality of men and women”,
_ “The same rights and responsibilities during marriage and at its
dissolution”(art.
16(1)(c));
_ “The same rights and responsibilities as parents, irrespective of their marital
status,
in matters relating to their children; in all cases the interests of the children shall
be
paramount” (art. 16(1)(d));
_ “The same rights and responsibilities with regard to guardianship, wardship,
trusteeship and adoption of children, or similar institutions where these concepts
exist in national legislation; in all cases the interests of the children shall be
paramount (art. 16(1)(f)); and
_ “The same rights for both spouses in respect of the ownership, acquisition,
management, administration, enjoyment and disposition of property, whether
free
of charge or for a valuable consideration” (art. 16(1)(h)).
6.4.2 General understanding of the principle of equal rights
and responsibilities
The Human Rights Committee states, with regard to article 23(4) of the
International Covenant, that “during marriage, the spouses should have equal
rights
and responsibilities in the family. This equality extends to all matters arising
from their
relationship, such as choice of residence, running of the household, education of
the
children and administration of assets. Such equality continues to be applicable to
arrangements regarding legal separation or dissolution of the marriage.”177
According
to the Committee, “any discriminatory treatment in regard to the grounds and
procedures for separation or divorce, child custody, maintenance or alimony,
visiting
rights or the loss or recovery of parental authority must be prohibited, bearing in
mind
the paramount interest of the children in this connection.”178
These views were expanded by the Committee in its General Comment No.
28, where it emphasized that, in order to fulfil their obligations under article
23(4),
“States parties must ensure that the matrimonial regime contains equal rights
and
obligations for both spouses with regard to the custody and care of children, the
children’s religious and moral education ... and the ownership or administration
of
property, whether common property or property in the sole ownership of either
spouse.” States parties should further ensure that no gender-based
discrimination
occurs in respect of residence rights. In short, “equality during marriage implies
that
husband and wife should participate equally in responsibility and authority within
the
family.”179
*****
Lawyers 497
177General Comment No. 19 (art. 23), United Nations Compilation of General Comments, p. 138, para. 8.
178Ibid., p. 138, para. 9.
In explaining its understanding of article 16(1)(c) of the Convention on the
Elimination of All Forms ofDiscrimination against Women, the Committee notes
that,
in providing for the rights and responsibilities of married partners, many
countries rely
on the application of common law principles, religious or customary law, rather
than
complying with the principles contained in the Convention. In the Committee’s
view,
these variations in law and practice have wide-ranging consequences for women,
invariably restricting their rights to equal status and responsibility within
marriage by
making the husband the head of the household and primary decision-maker in
contravention of the Convention.180
To the extent possible, the various components of the equal rights and
responsibilities of spouses will be given particular attention in the following
sub-sections.
6.4.3 Equal right to decision-making
The Human Rights Committee expressed concern about articles 182 and 196
of the Civil Code of Monaco, which respectively state that the “husband is the
head of
the family” and give him the right to choose the couple’s place of residence. The
State
party was asked by the Committee to repeal those provisions and to ensure de
facto
equality between men and women.181
*****
While recognizing the importance of the family as the basic social unit, the
Committee on the Elimination of Discrimination against Women expressed
concern,
with regard to Singapore, “that the concept of Asian values regarding the family,
including that of the husband having the legal status of head of household, might
be
interpreted so as to perpetuate stereotyped gender roles in the family and
reinforce
discrimination against women”.182
6.4.4 Equal parental rights and responsibilities
With regard to the shared parental rights and responsibilities defined in article
16(1)(d) and (f) of the Convention on the Elimination of All Forms of
Discrimination
against Women, the Committee states that they should be “enforced at law and
as
appropriate through legal concepts of guardianship, wardship, trusteeship and
adoption. States parties should ensure that by their laws both parents,
regardless of
their marital status and whether they live with their children or not, share equal
rights
and responsibilities for their children.”183 It furthermore states that, although
most
States recognize the shared responsibility of parents for care, protection and
maintenance of children, in practice some of them do not observe this principle,
particularly when the parents are not married. As a result, “the children of such
unions
p. 227, para. 20.
do not always enjoy the same status as those born in wedlock and, where the
mothers
are divorced or living apart, many fathers fail to share the responsibility of care,
protection and maintenance of their children.”184
*****
The Human Rights Committee expressed concern about the discriminatory
nature of article 301 of the Civil Code of Monaco, “which vests the father with
the
parental authority over the children”, and recommended that the State party
repeal this
provision.185
6.4.5 Equal rights to marital property
Given that article 23(4) of the International Covenant requires States parties,
according to the Human Rights Committee, to ensure that the matrimonial
regime
contains equal rights and obligations for both spouses with regard to the
ownership or
administration of property, whether common property or property in the sole
ownership of either spouse, “States parties should review their legislation to
ensure that
married women have equal rights in regard to the ownership and administration
of such
property, where necessary.”186 Women naturally also have the equal right to
represent
matrimonial property before the courts. On this issue, see the case of Ato del
Avellanal
considered in section 10 below and in Chapter 13.
*****
The Committee on the Elimination of Discrimination against Women points
out that the equal rights of spouses with regard to property under article 16(1)
(h) of the
Convention on the Elimination of All Forms of Discrimination against Women
overlap with and complement those in article 15(2) of the Convention “in which
an
obligation is placed on States to give women equal rights to enter into and
conclude
contracts and to administer property” (see further section 7 below).187 As to
marital
property, the Committee notes that “there are countries that do not
acknowledge that
right of women to own an equal share of the property with the husband during a
marriage or de facto relationship and when that marriage or relationship ends.
Many
countries recognize that right, but the practical ability of women to exercise it
may be
limited by legal precedent or custom.”188
The Committee also notes that “even when these legal rights are vested in
women, and the courts enforce them, property owned by a woman during
marriage or
on divorce may be managed by a man. In many States, including those where
there is a
community-property regime, there is no legal requirement that a woman be
consulted
when property owned by the parties during marriage or de facto relationship is
sold or
Lawyers 499
184Ibid., p. 227, para. 19.
188Ibid., p. 228, para. 30.
otherwise disposed of. This limits the woman’s ability to control disposition of the
property or the income derived from it”.189
out also that “in some countries, on division of marital property, greater
emphasis is
placed on financial contributions to property acquired during a marriage, and
other
contributions, such as raising children, caring for elderly relatives and
discharging
household duties are diminished. Often such contributions of a non-financial
nature by
the wife enable the husband to earn an income and increase the assets.
Financial and
non-financial contributions should be accorded the same weight.”190
The Committee further notes that “in many countries, property accumulated
during a de facto relationship is not treated at law on the same basis as property
acquired during marriage. Invariably, if the relationship ends, the women
receives a
significantly lower share than her partner. Property laws and customs that
discriminate
in this way against married or unmarried women with or without children should
be
revoked and discouraged.”191
Lastly, the Committee noted with concern that Egyptian women “who seek
divorce by unilateral termination of their marriage contract under Law No. 1 of
2000
(khul) must in all cases forego their rights to financial provision, including the
dower”.
It recommended that the Government consider a revision of the law in order to
eliminate this financial discrimination against women.192
6.4.6 The equal right to a profession and an occupation
States parties are required, under article 16(1)(g) of the Convention on the
Elimination of All Forms of Discrimination against Women, to ensure, “on a basis
of
equality of men and women”, “the same personal rights as husband and wife,
including
the right to choose a family name, a profession and an occupation”. As stated by
the
Committee on the Elimination of Discrimination against Women, “a stable family
is
one which is based on principles of equity, justice and individual fulfilment for
each
member. Each partner must therefore have the right to choose a profession or
employment that is best suited to his or her abilities, qualifications and
aspirations, as
provided in article 11(a) and (c) of the Convention.”193
6.4.7 Women living in de facto unions
With regard to women living in de facto unions, the Human Rights
Committee states that “in giving effect to recognition of the family in the context
of
article 23 [of the International Covenant], it is important to accept the concept of
the
various forms of family, including unmarried couples and their children and
single
parents and their children, and to ensure the equal treatment of women in these
189Ibid., pp. 228-229, para. 31.
190Ibid., p. 229, para. 32.
191Ibid., p. 229, para. 33.
p. 228, para. 24.
contexts.”194 On the same subject, the Committee on the Elimination of
Discrimination against Women holds that “the form and concept of the family
can vary
from State to State, and even between regions within a State. Whatever form if
takes,
and whatever the legal system, religion, custom or tradition within the country,
the
treatment of women in the family both at law and in private must accord with
the
principles of equality and justice for all people,” as required by article 2 of the
Convention on the Elimination of All Forms of Discrimination against Women. 195
Women in de facto unions “should have their equality of status with men both in
family
life and in the sharing of income and assets protected by law. Such women
should share
equal rights and responsibilities with men for the care and raising of dependent
children
or family members.”196
6.4.8 Equality with respect to divorce
In explaining the meaning of article 23(4) of the International Covenant on
Civil and Political Rights, the Human Rights Committee notes that States parties
have a
duty to ensure “equality in regard to the dissolution of marriage, which
excludes the
possibility of repudiation. The grounds for divorce and annulment should be
the
same for men and women, as well as decisions with regard to property
distribution,
alimony and the custody of children. Determination of the need to maintain
contact
between children and the non-custodial parent should be based on equal
considerations.”197
6.4.9 The equal right of succession between spouses
According to the Human Rights Committee, “women should also have equal
inheritance rights to those of men when the dissolution of marriage is caused by
the
death of one of the spouses” (on the right of succession in general, see below
sub-section 7.2).198
*****
out that “there are many countries where the law and practice concerning
inheritance
and property result in serious discrimination against women. As a result of this
uneven
treatment, women may receive a smaller share of the husband’s or father’s
property at
his death than would widowers and sons. In some instances, women are granted
limited
and controlled rights and receive income only from the deceased’s property.
Often
inheritance rights for widows do not reflect the principles of equal ownership of
property acquired during marriage. Such provisions contravene the Convention
and
should be abolished.”199
*****
Lawyers 501
196Ibid., p. 227, para. 18.
197Ibid., General Comment No. 28 (Article 3 – Equality of rights between men and women), p. 173, para. 26;
emphasis added.
198Ibid.
The Committee on Economic, Social and Cultural Rights expressed concern
that there are still “persisting patterns of discrimination against women” in
Moroccan
legislation, “particularly in family and personal status law, as well as inheritance
law”.200
Women and men have equal rights as to marriage, during marriage and
at its dissolution. In other words, they have the same rights and
responsibilities with regard to all matters arising from their relationship,
such as residence, economy, assets and children.
Married women have the same right as their spouse to choose and
exercise
a profession and occupation suited to their abilities.
International law accepts various forms of family life including unmarried
couples. Women living in de facto unions should have the same rights as
men with regard to both family life and sharing of property and income.
These rights should be protected by law.
Under international law women and men have equal rights with regard
to divorce. Repudiation is prohibited by international law.
Women have an equal right of succession when the marriage is dissolved
by the death of the spouse.
7. The Equal Right to Legal
Capacity in Civil Matters
7.1 Equal rights to administer property and
conclude contracts
As noted at the beginning of this chapter, women have a right to legal
personality on equal terms with men. Of course, this legal personality not only
covers
family affairs but extends to civil matters in general. Under the International
Covenant
on Civil and Political Rights, this is implicit in article 16, which guarantees the
right to
legal personality. Article 15(2) and (3) of the Convention on the Elimination of All
forms of Discrimination against Women stipulates as follows:
“2 States parties shall accord to women, in civil matters, a legal capacity
identical to that of men and the same opportunities to exercise that
capacity. In particular, they shall give women equal rights to conclude
contracts and to administer property and shall treat them equally in all
stages of procedure in courts and tribunals.
200UN doc. E/2001/22 (E/C.12/2000/21), p. 84, para. 527.
3. States parties agree that all contracts and all other private
instruments of any kind with a legal effect which is directed at restricting
the legal capacity of women shall be deemed null and void.”
On the interpretation of these provisions, the Committee on the Elimination
of Discrimination against Women states that “when a women cannot enter into a
contract at all, or have access to financial credit, or can do so only with her
husband’s or
a male relative’s concurrence or guarantee, she is denied legal autonomy. Any
such
restriction prevents her from holding property as the sole owner and precludes
her
from the legal management of her own business or from entering into any other
form
of contract. Such restrictions seriously limit the woman’s ability to provide for
herself
and her dependants.”201
The Committee urged Jordan to revoke a law that prohibits women from
concluding contracts in their own name, since such a prohibition is inconsistent
with
the legal status of women under the Jordanian Constitution and the Convention
on the
Elimination of All Forms of Discrimination against Women.202 In the case of the
Democratic Republic of Congo, the Committee expressed concern “about de jure
and
de facto discrimination against women with regard to the right to work,
particularly the
requirement of the husband’s authorization of a wife’s paid employment and
reduction
of pay during maternity leave”. Such discriminatory laws should be amended to
be
consistent with article 11 of the Convention on the Elimination of All Forms of
Discrimination against Women.203 With regard to the situation in Burkina Faso,
the
same Committee was concerned that “despite the law on agrarian and land
reform,
which establishes equality between men and woman with regard to land,
prejudices and
customary rights are once again hindering the implementation of this law.” It
therefore
recommended that the State party “encourage the services concerned to take
into
account the rights of women to property and to provide them with the necessary
credit”.204
*****
On the question of legal autonomy, the Human Rights Committee states that
the right of everyone under article 16 of the International Covenant on Civil and
Political Rights “to be recognized everywhere as a person before the law is
particularly
pertinent for women, who often see it curtailed by reason of sex or marital
status”; in its
view, “this right implies that the capacity of women to own property, to enter
into a
contract or to exercise other civil rights may not be restricted on the basis of
marital
status or any other discriminatory ground.”205 The Committee was therefore
gravely
concerned that both common and customary law in Lesotho permitted
discrimination
against women by treating them as minors. It noted with concern “that under
customary law, inheritance and property rights of women are severely restricted
and
Lawyers 503
p. 224, para. 7.
203Ibid., p. 24, paras. 225-226.
204Ibid., p. 28, paras. 277-278.
205General Comment No. 28 (art. 3 – Equality of rights between men and women), United Nations
Compilation of General Comments,
p. 171, para. 19.
that under customary law, as well as under common law, women may not enter
into
contracts, open bank accounts, obtain loans or apply for passports without the
permission of their husbands”. The Committee therefore urged the State party
“to take
measures to repeal or amend these discriminatory laws and eradicate these
discriminatory practices”, which violate articles 3 and 26 of the Covenant.206
*****
The Committee on Economic, Social and Cultural Rights was “deeply
concerned that the Government of Cameroon [had] not yet embarked on the
necessary
law reform to repeal laws which maintain the unequal legal status of women,
particularly in aspects of the Civil Code and the Commercial Code relating to,
inter alia,
the right to own property and the laws regarding credit and bankruptcy, which
restrict
women’s access to means of production”. These Codes are, in the Committee’s
view,
“in flagrant violation of the non-discrimination and equal treatment provisions of
the
Covenant [on Economic, Social and Cultural Rights] and are inconsistent with the
recently amended Constitution of Cameroon which upholds the equal rights of all
citizens.” The Committee therefore recommended that the State party repeal all
provisions of the Civil and Commercial Codes which discriminate against
women.207
7.2 The equal right to succession in general
It follows from the right to equality before the law that women must have
equal rights of inheritance with men. As noted above in connection with
article
16(1)(h) of the Convention on the Elimination of All Forms of Discrimination
against
Women, as interpreted in the light of article 15(1), “any law or custom that
grants men a
right to a greater share of property at the end of a marriage or de facto
relationship, or
on the death of a relative, is discriminatory and will have a serious impact on a
woman’s
practical ability to divorce her husband, to support herself and to live in dignity
as an
independent person.”208 “All of these rights”, including the right to inherit equal
shares,
“should be guaranteed regardless of a women’s marital status.”209
expressed concern that in India “the practice of debt bondage and the denial of
inheritance rights in land result in gross exploitation of women’s labour and their
impoverishment.” It called on the Government “to review laws on inheritance
urgently
and to ensure that rural women obtain access to land and credit”.210 The
Committee
was also concerned “that failure to register marriages may ... prejudice the
inheritance
of women”.211
*****
p. 228, para. 28.
209Ibid., p. 228, para. 29.
211Ibid., p. 10, para. 62.
The Human Rights Committee stated that Gabon “must review its legislation
and practice in order to ensure that women have the same rights as men,
including
rights of ownership and inheritance,” and that “there is no discrimination based
on
customary law in matters such as marriage, divorce and inheritance”.212 It also
expressed concern about the persistent inequality between women and men “in
a
number of areas, such as inheritance” in the Libyan Arab Jamahiriya and
recommended
that the State party “intensify its efforts to guarantee full equal enjoyment by
men and
women of all their human rights”.213
*****
The Committee on Economic, Social and Cultural Rights expressed concern
that, under the laws on inheritance in Tunisia, “females are entitled to receive
only half
of the inheritance of males.” It strongly recommended “that all men, women and
children of both sexes should be enabled to enjoy the right to inherit on a basis
of
equality”.214
Women have the right to equal legal capacity with men in civil matters.
This means, for instance, that women must be ensured equal rights to
own and administer property, and to conclude contracts and obtain credit,
and that they must be allowed to work without their husband’s or other
relative’s permission.
The right to equal legal autonomy also implies that women have a right
to inherit on a basis of full equality with men.
Customs and traditions are not allowed to prejudice the effective exercise
of these rights.
8. The Right to Equal Participation
in Public Affairs, including
Elections
Article 25 of the International Convention on Civil and Political Rights
stipulates that “every citizen shall have the right and the opportunity, without
any of the
distinctions mentioned in article 2 and without unreasonable restrictions:
Lawyers 505
213UN doc. GAOR, A/54/40 (vol. I), pp. 35, para. 137.
214UN doc. E/2000/22 (E/C.12/1999/11), pp. 37-38, para. 165, and p. 39, para. 173.
(a) To take part in the conduct of public affairs, directly or through freely
chosen representatives;
(b) To vote and to be elected at genuine periodic elections which shall be by
universal and equal suffrage and shall be held by secret ballot,
guaranteeing the free expression of the will of the electors;
(c) To have access, on general terms of equality, to public service in his
country.”
Discrimination against Women reads as follows:
“States Parties shall take all appropriate measures to eliminate
discrimination against women in the political and public life of the country
and, in particular, shall ensure to women, on equal terms with men, the
right:
(a) To vote in all elections and public referenda and to be eligible for
election to all publicly elected bodies;
(b) To participate in the formulation of government policy and the
implementation thereof and to hold public office and perform all
public functions at all levels of government;
(c) To participate in non-governmental organizations and associations
concerned with the public and political life of the country.”
Article 8 of the same treaty reads:
“States Parties shall take all appropriate measures to ensure to women, on
equal terms with men and without discrimination, the opportunity to
represent their Governments at the international level and to participate in
the work of international organizations.”
Another universal treaty of interest in this connection is the Convention on
the Political Rights of Women, which was adopted by the United Nations
General
Assembly in 1953 and entered into force on 7 July 1954. It is a short treaty
setting forth
the following rights, which must be ensured “on equal terms with men, without
any
discrimination”:
_ the right to vote in all elections (art. I);
_ the right to be eligible for election to all publicly elected bodies, established by
national law (art. II); and
_ the right to hold public office and to exercise all public functions (art. III).
*****
At the regional level, article 23 of the American Convention on Human Rights
guarantees the right to equal participation in public affairs and the right to vote
and to
be elected in “genuine periodic elections”. The right to vote and to be elected is
not
expressly guaranteed by article 13 of the African Charter on Human and Peoples’
Rights, but it does recognize the right to participate freely in the government of
one’s
country “either directly or through freely chosen representatives in accordance
with the
provisions of the law”. Article 13 of the Charter also provides for the right of
equal
access to the public service of one’s country. Under article 3 of Protocol No. 1 to
the
European Convention on Human Rights, “the High Contracting Parties undertake
to
hold free elections at reasonable intervals by secret ballot, under conditions
which will
ensure the free expression of the opinion of the people in the choice of the
legislature.”
Article 14 of the Convention requires the exercise of this right to be ensured
without
discrimination between men and women.
*****
Clearly, therefore, women’s right to equal participation in public affairs,
including the right to vote and to be elected, is firmly rooted in international
human
rights law. This important right cannot, however, be discussed in detail in this
context,
which will be limited to a brief description of its main features.215
8.2 The interpretation of article 25 of the
International Covenant on Civil and Political
Rights
As pointed out by the Human Rights Committee, “article 25 lies at the core of
democratic government based on the consent of the people and in conformity
with the
principles of the Covenant” and it must be guaranteed without discrimination
based on
sex.216 Women must therefore enjoy, inter alia, the following rights on equal
terms with
men:
_ the right to exercise political power, in particular legislative, executive and
administrative powers. This right covers all levels of administration – local,
regional,
national and international – and can be exercised, for instance, through
membership
of a legislative body or by holding executive office;217
_ the right to exert influence through public debate and dialogue with their
representatives or through their capacity to organize themselves. “This
participation
is supported by ensuring freedom of expression, assembly and association;”218
_ the right to vote or to run for election. “Genuine periodic elections ... are
essential to
ensure the accountability of representatives for the exercise of the legislative or
executive powers vested in them;”219
_ the right to freedom of expression, assembly and association, which are
“essential
conditions for the effective exercise of the right to vote and must be fully
protected”;220
Lawyers 507
215For more details on the interpretation of article 25 of the International Covenant, see General Comment
No. 25 (Article 25),
United Nations Compilation of General Comments, pp. 157-162. On articles 7-8 of the Convention on the
Elimination of All Forms of
Discrimination Against Women, see General Recommendation No. 23 (Political and public life), pp. 233-244.
216Ibid., General Comment No. 25 (Article 25), p. 157, paras. 1 and 3.
217Ibid., pp. 157-158, paras. 5-6.
218Ibid., p. 158, para. 8.
219Ibid., p. 158, para. 9.
220Ibid., p. 159, para. 12.
_ “the right ... to have access on general terms of equality to public service
positions.
To ensure access on general terms of equality, the criteria and processes for
appointment, promotion, suspension and dismissal must be objective and
reasonable.”221
On the basis of its long experience, however, the Human Rights Committee
has found that “the right to participate in the conduct of public affairs is not fully
implemented everywhere on an equal basis. States parties must ensure that the
law
guarantees to women the rights contained in article 25 on equal terms with men
and
take effective and positive measures to promote and ensure women’s
participation in
the conduct of public affairs and in public office, including appropriate
affirmative
action. Effective measures taken by States parties to ensure that all persons
entitled to
vote are able to exercise that right should not be discriminatory on the grounds
of
sex.”222
While recognizing that there had been some progress in achieving equality for
women in political and public life in Croatia, the Human Rights Committee
remained
concerned “that the representation of women in Parliament and in senior official
positions, including the judiciary, still [remained] low”. The State party was
therefore
urged to make every effort to improve the representation of women in the public
sector, if necessary through appropriate positive measures, in order to give
effect to its
obligations under articles 3 and 26 of the International Covenant.223 A similar
recommendation was made to the Czech Republic in view of the low participation
of
women in political life, as well as their inadequate representation in higher levels
of
administration in the country.224
8.3 The interpretation of articles 7 and 8 of the
Convention on the Elimination of All Forms
of Discrimination against Women
expressed its views on how to interpret articles 7 and 8 of the Convention on the
Elimination of All Forms of Discrimination against Women in its General
Recommendation No. 23 on “political and public life”. With regard to the
obligation of
States parties under article 7 to take all appropriate measures to eliminate
discrimination
against women in political and public life, the Committee states that this
obligation:
“extends to all areas of public and political life and is not limited to those
areas specified in subparagraphs (a), (b) and (c). The political and public life
of a country is a broad concept. It refers to the exercise of political power,
in particular the exercise of legislative, judicial, executive and
administrative powers. The term covers all aspects of public administration
and the formulation and implementation of policy at the international,
national, regional and local levels. The concept also includes many aspects
221Ibid., p. 161, para. 23.
222Ibid., General Comment No. 28 (Article 3 – Equality of rights between men and women), pp. 173-174,
para. 29.
224Ibid., p. 86, para. 12. See similar concern regarding Romania, in UN doc., GAOR, A/54/40 (vol. I), p. 69,
para. 366.
of civil society, including public boards and local councils and the activities
of organizations such as political parties, trade unions, professional or
industry associations, women’s organizations, community-based
organizations and other organizations concerned with public and political
life.”225
The Committee further states that:
“to be effective, this equality must be achieved within the framework of a
political system in which each citizen enjoys the right to vote and be elected
at genuine periodic elections held on the basis of universal suffrage by
secret ballot, in such a way as to guarantee the free expression of the will of
the electorate, as provided for under international human rights
instruments, such as ... article 25 of the International Covenant on Civil
and Political Rights.”226
The right to vote and to be elected “on the basis of equality with men” must
be enjoyed both de jure and de facto. In the Committee’s experience, however,
women
in many nations “continue to experience difficulties in exercising this right”
owing to
factors such as women’s double burden of work, financial constraints, “traditions
and
social and cultural stereotypes”, male influence on or control of women’s votes
(practices that “should be prevented”) and restrictions on women’s freedom of
movement.227
With regard to the right to participate in the formulation of government
policy, as guaranteed by article 7(b), States parties have a duty:
_ “to ensure that women have the right to participate fully in and be represented
in
public policy formulation in all sectors and at all levels”;
_ “where it is within their control, both to appoint women to senior decision-
making
roles and, as a matter of course, to consult and incorporate the advice of groups
which are broadly representative of women’s views and interests”;
_ “to ensure that barriers to women’s full participation in the formulation of
government policy are identified and overcome”.228
With regard to the right to hold public office and to perform all public
functions, which is also guaranteed by article 7(b) of the Convention, “the
examination
of the reports of States parties demonstrates”, according to the Committee,
“that
women are excluded from top-ranking positions in cabinets, the civil service and
in
public administration, in the judiciary and in justice systems”.229 In some cases,
the law
also “excludes women from exercising royal powers, from serving as judges in
religious
or traditional tribunals vested with jurisdictions on behalf of the State or from full
participation in the military. These provisions discriminate against women ... and
contravene the principles of the Convention.”230
Lawyers 509
225General Recommendation No. 23 (Political and public life), United Nations Compilation of General
226Ibid., p. 234, para. 6.
227Ibid., p. 237, paras. 18-20.
228Ibid., p. 238, paras. 25-27.
229Ibid., p. 239, para. 30.
230Ibid., p. 239, para. 31.
With respect to article 8 of the Convention, “Governments are obliged to
ensure the presence of women at all levels and in all areas of international
affairs [such
as] in economic and military matters, in both multilateral and bilateral
diplomacy, and in
official delegations to international and regional conferences”. In the
Committee’s
experience, “it is evident that women are grossly under-represented in the
diplomatic
and foreign services of most Governments, and particularly at the highest ranks”
and
that many permanent missions to international organizations have no women
among
their diplomats and few at senior levels.231 Yet “States parties are under an
obligation to
take all appropriate measures, including the enactment of appropriate
legislation,” to
comply with articles 7 and 8 of the Convention.232
With regard to the situation in India, the Committee expressed concern about
“the low participation of qualified women in the administration and the judiciary,
including family courts and lok adalats or conciliation tribunals”.233 With respect
to the
Maldives, it was concerned “that the reservation to article 7(a) on political
participation
supports the retention of legislative provisions that exclude women from the
office of
President and Vice-President of the Country”.234
Women have a right to equal participation with men in the conduct of
public affairs of their country and they have the right to do so either
directly themselves or through freely chosen representatives.
Women have a right to vote and to be elected themselves on an equal
footing with men in all elections and referenda.
Women have an equal right with men to hold public office and to perform
governmental functions at all levels.
Women have a right to equal participation in the formulation and
implementation of government policy.
Women have an equal right to participate in public debate, either alone
or through a variety of organizations, a right that presupposes the
effective
enjoyment also of the freedoms of expression, assembly and association.
States must ensure that women have an equal opportunity with men to
represent their government at the international level.
The right to equal participation in a country’s public and political life is
a cornerstone of a democratic society based on respect for the freely
expressed will of the people concerned.
231Ibid., p. 240, paras. 35-37.
232Ibid., p. 241, paras. 41-42.
9. Women’s Right to Equal

Enjoyment of Other Human
Rights
Women’ right to equal enjoyment of human rights is not, of course, limited to
the rights dealt with in some detail above but covers the entire spectrum of
internationally guaranteed human rights and fundamental freedoms.
This means
that all rights, whether civil and political, or economic, social and cultural, must
be
ensured to women on an equal footing with men. As explained in Chapter 14
below,
these rights are all intrinsically linked and interdependent, and therefore depend
on
each other for their full implementation. It follows logically that women’s
rights
cannot be fully guaranteed, and women’s potential as a positive
element in the
construction of a secure, peaceful and prosperous world cannot be
adequately
ensured without a holistic approach both to the rights and freedoms
that they are
entitled to enjoy, and to the role they have a legitimate interest in
fulfilling, at the
local, regional, national and international levels.
In addition to the rights already dealt with, some further rights are listed
below, the equal enjoyment of which is of particular importance to women. The
list is
not, however, exhaustive. It does not, for instance, include women’s right to
equal
enjoyment of economic, social and cultural rights protected by international
human
rights law such as the right to equality in the field of employment with equal pay
for
equal work and the right of equal access to health, which is of fundamental
importance
to the development of the girl child. For more information about women’s
enjoyment
of economic, social and cultural rights, see the relevant recommendations of the
Committee on Economic, Social and Cultural Rights and the Committee on the
Elimination of Discrimination against Women, and the work carried out by the
International Labour Organization.
This section will therefore confine itself to equal enjoyment of freedom of
movement and residence, the right to privacy, freedom of thought, conscience,
belief,
religion, opinion, expression, association and assembly, and the right to
education.
9.1 The right to freedom of movement and residence
The equal right to freedom of movement and residence is guaranteed by
article 12 of the International Covenant on Civil and Political Rights, article 15(4)
of the
article
12 of the African Charter on Human and Peoples’ Rights, article 22 of the
American
Convention on Human Rights and article 2 of Protocol No. 4 to the European
Convention on Human Rights. The exercise of this right can in principle be
restricted
on certain grounds such as those described in article 12(3) of the International
Covenant, article 22(3) of the American Convention and article 2(3) of Protocol
No. 4
to the European Convention.
*****
Lawyers 511
According to the Human Rights Committee, State parties must ensure “that
the rights guaranteed in article 12 are protected not only from public but also
from
private interference. In the case of women, this obligation to protect is
particularly
pertinent. For example, it is incompatible with article 12, paragraph 1, that the
right of a
woman to move freely and to choose her residence be made subject, by law or
practice,
to the decision of another person, including a relative.”235 This applies to both
married
women and adult daughters, who need no consent from their spouse or parents,
or
from anybody else, in order to travel freely or to have a passport or any other
travel
document issued in their name. Any such legal or de facto requirement would be
incompatible with article 12(3) of the Covenant.236 In examining States parties’
reports,
“the Committee has on several occasions found that measures preventing
women from
moving freely or from leaving the country by requiring them to have the consent
or the
escort of a male person constitute a violation of article 12.”237 More specifically,
it
expressed concern, for instance, at the inequality between men and women in
terms of
freedom of movement in the Libyan Arab Jamahiriya and asked the Government
to
intensify its efforts to ensure full equality in this and other areas.238
*****
The Committee on the Elimination of Discrimination against Women noted
with concern “that Jordanian law prohibits women ... from travelling alone and
from
choosing their place of residence,” limitations which, in its view, are inconsistent
with
the legal status of women under both the Jordanian Constitution and the
Convention
on the Elimination of All Forms of Discrimination against Women.239
Women have the right to freedom of movement and residence on an equal
basis with men.
No one has the right to prohibit an adult woman from travelling or
choosing her residence.
No custom or tradition can justify a limitation of this right.
9.2 The right to privacy
The right to respect for one’s private life is protected by article 17 of the
International Covenant on the Civil and Political Rights, article 11(2) of the
American
Convention on Human Rights, and article 8 of the European Convention on
Human
Rights.
235General Comment No. 27 (Article 12 – Freedom of movement), United Nations Compilation of General
236Ibid., General Comment No. 28 (Article 3 – Equality of rights between men and women), pp. 170-171,
para. 16.
237Ibid., General Comment No. 27 (Article 12 – Freedom of movement), p. 166, para. 18.
An example of gender-based interference with a women’s right to respect for
her private life is “where the sexual life of a women is taken into consideration in
deciding the extent of her legal rights and protection, including protection
against rape.
Another area where States may fail to respect women’s privacy relates to their
reproductive functions, for example, where there is a requirement for the
husband’s
authorization to make a decision in regard to sterilization; where general
requirements
are imposed for the sterilization of women, such as having a certain number of
children
or being of a certain age, or where States impose a legal duty upon doctors and
other
health personnel to report cases of women who have undergone abortion.”240
*****
As shown in sub-section 4.3.3 above, a woman’s right to respect for her
private life requires States, inter alia, to take practical and effective measures
such as
providing for the possibility of bringing criminal proceedings against perpetrators
of
sexual assault.
Women have the right to enjoy respect for their private life on the same
basis as men. This right must be effectively guaranteed.
A woman’s reproductive life forms part of her private sphere, over which
she has the ultimate right to decide.
9.3 Freedom of thought, conscience, belief, religion,
opinion, expression, association and assembly
The freedoms of thought, conscience, belief, religion, opinion, expression,
association and assembly are the cornerstone of a democratic society. These
freedoms
are guaranteed by articles 18, 19, 21 and 22 of the International Covenant on
Civil and
Political Rights, articles 8-11 of the African Charter on Human and Peoples’
Rights,
articles 12, 13,15 and 16 of the American Convention on Human Rights, and
articles
9-11 of the European Convention on Human Rights.
According to the Human Rights Committee States parties to the International
Covenant must take measures to ensure that freedom of thought, conscience
and
religion, and the freedom to adopt the religion or belief of one’s choice, including
the
freedom to change religion or belief and to express one’s religion or belief, are
“guaranteed and protected in law and in practice for both men and women, on
the same
terms and without discrimination”. These freedoms, which are protected by
article 18
of the Covenant, “must not be subject to restrictions other than those authorized
by the
Covenant and must not be constrained by, inter alia, rules requiring permission
from
third parties, or by interference from fathers, husbands, brothers or others.
Article 18
may not be relied upon to justify discrimination against women by reference to
the
freedom of thought, conscience and religion”.241
Lawyers 513
240General Comment No. 28 (Article 3 – Equality of right between men and women), United Nations
241Ibid., p. 172, para. 21.
As shown in section 8 above, freedom of expression, assembly and
association is of fundamental importance for enabling women to take an active
part in
public life on equal terms with men. These freedoms must therefore be
effectively
ensured for women and men alike. Restrictions on their exercise must not
discriminate
against women.
For information on the substantive interpretation of freedom of thought,
conscience, religion, opinion, expression, association and assembly, see Chapter
12 of
this Manual.
Women have the right to exercise freedom of thought, conscience, belief,
religion, opinion, expression, association and assembly on the same basis
of equality as men. No one has the right to interfere with a woman’s free
exercise of these freedoms.
Restrictions on the exercise of these freedoms must respect the conditions
laid down in international human rights law. Such restrictions must not
be discriminatory.
9.4 The right to education
The right to education is guaranteed by article 13 of the International
Covenant on Economic, Social and Cultural Rights, article 10 of the Convention
on the
Elimination of All Forms of Discrimination against Women, article 17 of the
African
Charter on Human and Peoples’ Rights, and article 13 of the Additional Protocol
to the
American Convention on Human Rights in the Area of Economic, Social and
Cultural
Rights. Under these treaties, the right to education must be guaranteed without
discrimination based on sex. Furthermore, the 1960 UNESCO Convention against
Discrimination in Education, which entered into force on 22 May 1962, aims at
the
elimination of discrimination in general, including gender-based discrimination in
the
field of education.
*****
The Committee on Economic, Social and Cultural Rights noted with concern
“that despite the achievements of Egypt in the field of education, inequality of
access to
education between boys and girls, high drop-out rates for boys and high illiteracy
rates
among adults, particularly women, persist”. It urged the Government to
undertake
measures to address the economic, social and cultural factors that are the root
cause of
these problems.242 The Committee also expressed concern regarding the
situation in
Kyrgyzstan, where children were dropping out of school to provide for their
families;
the situation of girls was particularly alarming as “their access to education
[was] being
curtailed by a revival of the tradition of early marriage, and a decrease in the
prestige of
having a formal education.”243
*****
243Ibid., p. 64, para. 351.
concern at the fact that “children born to Egyptian mothers and foreign fathers
are
faced with discrimination in the field of education.”244
*****
The Human Rights Committee expressed concern at the situation in Zambia,
where, “despite some advances, [women] continue to be de jure and de facto
the object
of discrimination, particularly as regards education.” It therefore recommended
that
the State party review its law so as to ensure “full legal and de facto equality for
women
in all aspects of social and economic relationships”.245
*****
expressed concern about “the restricted admission of women to certain courses
in
higher education” in Myanmar, which contravenes article 10(b) and (c) of the
Convention on the Elimination of All Forms of Discrimination against Women. It
urged the Government “to modify the policies on restricted admissions, noting
that the
women themselves should be entitled to decide which subjects they wish to
study and
professions they wish to pursue”.246 Despite the efforts of the Cameroon
Government
in the area of education, the Committee remained concerned “at the low rate of
female
literacy, the high female dropout rate, and the low rate of female enrolment in
basic
education”. It encouraged the Government “to intensify its efforts to promote
female
access to basic and secondary education and to develop programmes specifically
designed to reduce female illiteracy”.247 The Committee also expressed concern
at the
high prevalence of illiteracy among women in Burundi and the low level of
schooling of
girls, especially in rural areas. It noted that “education is a key to the
empowerment of
women, and low levels of education of women remain one of the most serious
impediments to national development.”248 The Committee therefore urged the
Government “to continue its efforts to improve the access of girls to all levels of
education and to prevent their dropping out of school”.249
Girls and women have the right to equal access with boys and men to
education, be it at the primary, secondary or higher levels of education.
Under international human rights law, women have the right to choose
their subjects of study and the professions they want to pursue. There
must be no gender-based restrictions on access to higher education.
Education is essential to ensure women’s effective enjoyment of other
human rights and to help them play a constructive role in the
development
of their country.
Lawyers 515
245UN doc. GAOR, A/51/40, p. 40, para. 195, and p. 41, para. 207.
247Ibid., p. 56, paras. 57-58.
249Ibid., p. 10, para. 58.
10. Women’s Right to an Effective

Remedy, including the Right of
Access to the Courts and Due
Process of Law
The legal duty to provide effective remedies for persons whose rights and
freedoms are violated is contained in article 2(3) of the International Covenant
on Civil
and Political Rights, article 7(a) of the African Charter on Human and Peoples’
Rights,
article 25 of the American Convention on Human Rights and article 13 of the
European Convention on Human Rights. Article 2(b) and (c) of the Convention on
the
Elimination of All Forms of Discrimination against Women contains rules about
the
legal duties of States parties “to adopt appropriate legislative and other
measures,
including sanctions where appropriate, prohibiting all discrimination against
women”
and “to establish legal protection of the rights of women on an equal basis with
men”.
Article 14 of the International Covenant, article 8 of the American
Convention and article 6 of the European Convention also contain due process
guarantees which must be ensured to everyone without discrimination on any
ground
such as sex (cf. articles 2(1), 3 and 14(1) of the Covenant, article 1 of the
American
Convention and article 14 of the European Convention). As will be seen below,
these
provisions also guarantee access to the courts or, in other words, access to
justice.250
Although the question of availability of domestic remedies will be dealt with in
some depth in Chapter 15 of this Manual concerning “Protection and Redress for
Victims of Human Rights Violations”, it should be mentioned in this context that
women may inmany instances be in a particularly disadvantageous position to
vindicate
their rights, since they may not, for instance, have access to the courts or be
able to
benefit from due process guarantees. The Human Rights Committee has
therefore
asked the States parties to the International Covenant to provide information in
their
reports on the following points:
_ “whether there are legal provisions preventing women from direct and
autonomous
access to the courts”;
_ “whether women may give evidence as witnesses on the same terms as men”;
_ “whether measures are taken to ensure equal access to legal aid, in particular
in
family matters”, and
_ “whether certain categories of women are denied the enjoyment of the
presumption
of innocence under article 14, paragraph 2, and on the measures which have
been
taken to put an end to this situation”.251
The case of Ato del Avellanal v. Peru illustrates the dilemma that can face
women who do not have equal access to justice. The case concerned a Peruvian
women
who owned two apartment buildings in Lima and who, by final decision of the
Supreme
250On article 14 of the Covenant, see Human Rights Committee General Comment No. 28 (Article 3 –
Equality of rights
between men and women), United Nations Compilation of General Comments, p. 171, para. 18.
251Ibid., loc. cit.
Court, was not allowed to sue the tenants in order to collect overdue rents, since,
under
article 168 of the Peruvian Civil Code, when a women is married, only her
husband is
entitled to represent the matrimonial property before the courts.252 According to
the
Human Rights Committee, this violated the following provisions of the
International
Covenant on Civil and Political Rights:
_ Article 14(1), which guarantees that all persons shall be equal before the courts
and
tribunals, since “the wife was not equal to her husband for purposes of suing in
Court”;
_ Article 3, which requires States parties to ensure the equal right of men and
women
to the enjoyment of all civil and political rights set forth in the Covenant, and
article
26, which states that “all persons are equal before the law and are entitled
without
any discrimination to the equal protection of the law”; the Committee found that
the application of article 168 of the Peruvian Civil Code to the author “resulted in
denying her equality before the courts and constituted discrimination on the
ground
of sex”.253
*****
Another important case illustrating women’s right of access to the courts is
that of Airey v. Ireland, which was considered by the European Court of Human
Rights.
In this case, Ms. Airey claimed a violation of, inter alia, article 6(1) of the
European
Convention of Human Rights, “since the prohibitive cost of litigation prevented
her
from bringing proceedings before the High Court for the purpose of petitioning
for
judicial separation” from her husband who was an alcoholic, frequently
threatened her
and sometimes also subjected her to physical violence. Her husband had even
once
been convicted of assaulting her.254 Legal aid was not available at the time in
Ireland
either for the purpose of seeking a judicial separation or for any other civil
matters.255
The Court held that, since judicial separation was a remedy provided for by
Irish law, it should be available to anyone who satisfied the conditions prescribed
thereby.256 The Court responded as follows to the Government’s contention that
the
applicant did in fact enjoy access to the High Court since she was “free to go
before that
court without the assistance of a lawyer”:
“The Court does not regard this possibility, of itself, as conclusive of the
matter. The Convention is intended to guarantee not rights that are
theoretical or illusory but rights that are practical and effective ... This is
particularly so of the right of access to the courts in view of the prominent
place held in a democratic society by the right to a fair trial ... It must
therefore be ascertained whether Mrs. Airey’s appearance before the High
Court without the assistance of a lawyer would be effective, in the sense of
whether she would be able to present her case properly and
satisfactorily”.257
Lawyers 517
252Communication No. 202/1986, G. Ato del Avellanal v. Peru (Views adopted on 28 October 1988), in UN
doc. GAOR,
A/44/40, p. 196, paras. 1 and 2.1.
253Ibid., pp. 198-199, paras. 10.1-10.2.
254Eur. Court HR, Case of Airey v. Ireland, judgment of 9 October 1979, Series A, No. 32, p. 12, para. 20,
and p. 6, para. 8.
255Ibid., p. 7, para. 11.
256Ibid., p. 12, para. 23.
257Ibid., pp. 12-13, para. 24.
The Court considered it “most improbable that a person in Mrs. Airey’s
position [could] effectively present his or her own case”. It therefore concluded
that the
possibility to appear in person before the High Court did not provide the
applicant with
an effective right of access to the courts, and that, hence, it did not constitute a
domestic remedy for the purpose of article 26 of the European Convention.258
However, this conclusion did not mean that the State would have to provide free
legal
aid for every dispute relating to a “civil right” but that article 6(1) “may
sometimes
compel the State to provide for the assistance of a lawyer when such assistance
proves
indispensable for an effective access to court either because legal representation
is
rendered compulsory, as is done by the domestic law of certain Contracting
States for
various types of litigations, or by reason of the complexity of the procedure or of
the
case”.259 In the Airey case the Court found that article 6(1) of the Convention had
been
violated since the applicant “did not enjoy an effective right of access to the
High Court
for the purpose of petitioning for a decree of judicial separation”.260
*****
With regard to the availability of remedies, the Committee on the Elimination
of Discrimination against Women called upon the Government of Belarus “to
create
adequate remedies for women to obtain easy redress from direct and indirect
discrimination, especially in the area of employment,” and “to improve women’s
access
to such remedies, including access to courts, by facilitating legal aid to women
and
embarking on legal literacy campaigns”.261 The Committee recommended that
the
Government of Cameroon “provide access to legal remedies” to women who are
victims of violence.262 It requested the Government of Uzbekistan “to pass a law
against violence, especially against domestic violence, including marital rape, as
soon as
possible and to ensure that violence against women and girls constitutes a crime
punishable under criminal law and that women and girls victims of violence have
immediate means of redress and protection”.263 It also expressed concern with
regard
to Jamaica, where “there are no constitutional remedies available to women”,
although
the right to equality of all citizens is guaranteed by the Jamaican Constitution.264
Under international human rights law women have the right of access to
justice, and the right to due process of law, on equal terms with men.
This means, in particular, that women must have access to effective
domestic remedies, including effective access to the courts, for the
purpose
of vindicating their rights. This applies to all alleged violations of their
human rights but is particularly important in cases of alleged violence to
their person.
258Ibid., pp. 12-13, para. 24.
259Ibid., pp. 15-16, para. 26.
260Ibid., p. 16, para. 28.
262Ibid., p. 55, para. 50.
264Ibid., p. 24, para. 211.
To ensure the effective exercise of the right of access to the courts/access
to
justice, States may have a legal obligation to provide legal aid.
The due process guarantees laid down in international human rights law
are equally valid for women and men. This implies, inter alia, that
women’s evidence must be given and assessed on the same terms as that
of
men, and that all women must be allowed to benefit from the presumption
of innocence.
and Lawyers in Ensuring
Protection of the Rights of
Women
The role of judges, prosecutors and lawyers in the protection of human rights
in general is at all times of fundamental importance, but the role that the legal
professions play, or should play, in protecting the rights of women and the girl
child is
of special significance in a social and cultural environment in which women may
have
nowhere else to go to seek protection and relief from violations of their basic
human
rights, including gender-based discrimination.
Judges, prosecutors and lawyers have a special duty at all times to be alert to
any sign of violence against women, whether State-sponsored, institutional,
State-tolerated, community violence or violence in the private sphere. The legal
protection of women must be scrupulously applied in the face of religious,
cultural or
other local customs that may resist the view that a woman’s life is of equal value
to that
of a man.
The crucial role of judges, prosecutors and lawyers extends, of course, beyond
the context of violence against women. It covers the whole spectrum of human
rights
as outlined in this chapter, including, for instance, the many aspects of equality
pertaining to marriage, divorce, the care of children, participation in public life
and
education. Moreover, it covers a long list of economic, social and cultural rights,
which,
for reasons of space, have not been dealt with in this context.
It is, however, particularly important that the legal professions, in considering
allegations of violations of the human rights of women, including gender-based
discrimination, adopt a holistic approach to individual rights, because, as shown
in this
chapter, the interdependence of the rights guaranteed by international human
rights law
emerges with particular clarity from any analysis of the rights of women.
Lawyers 519

This chapter has shown that human rights are also women’s rights, that
women have the right to full legal recognition under international human rights
law and
that they must be treated on an equal footing with men. However, the precarious
situation in which many of the world’s women live and which makes the
enjoyment of
many of their human rights illusory, gives rise to a very special responsibility for
both
national legal professions and international monitoring bodies. If human rights
are to
become a reality in the future for more than a minority of the world’s women, a
concerted effort will have to be made at all levels to ensure that they are
genuinely able
to exercise their rights without fear of being beaten, killed or, at best, socially
rejected.
.........Chapter 12
SOME OTHER KEY RIGHTS:
FREEDOM OF THOUGHT,
CONSCIENCE, RELIGION,
OPINION, EXPRESSION,
ASSOCIATION AND
ASSEMBLY.............................
Learning Objectives
_ To familiarize the participants with some other key rights, namely
freedom of
thought, conscience, religion, opinion, expression, association and
assembly, and their
importance in a society that is respectful of human rights in general
_ To illustrate how these freedoms, as well as the limitations attached to
the exercise of
most of them, are interpreted by the international monitoring bodies
_ To explain the role of judges, prosecutors and lawyers in safeguarding
the freedoms
dealt with in this chapter
Questions
_ How are the following freedoms protected in the country in which you
work:
– freedom of thought, conscience, and religion,
– freedom of opinion and expression, and
– freedom of association and assembly?
_ Are there any particular concerns with regard to the effective
implementation of these
freedoms in the country in which you work?
_ Are there any groups in the country in which you work that might be
particularly
vulnerable to violations of one or more of these freedoms?
_ If so, who are they and how may their freedoms be violated?
Lawyers 521
Questions (cont.d)
_ What judicial or administrative remedies exist in the country in which you
work for
persons who consider themselves to be victims of violations of these
freedoms?
_ What role is played by the following freedoms in building, preserving
and/or
strengthening a democratic society/a society respectful of human rights:
– freedom of thought, conscience, and religion,
– freedom of opinion and expression, and
– freedom of association and assembly?
_ With regard to freedoms whose exercise may be limited: in your view,
how can a
balance be struck between an individual’s right to exercise those
freedoms and a
society’s general interest in protecting, for instance, national security,
public order,
safety, health, morals or the rights and freedoms of others?
_ What can you as judges, prosecutors or lawyers do to protect every
person’s right to
freedom of thought, conscience, religion, opinion, expression, association
and
assembly?
_ International Convention on the Elimination of All Forms of Racial
Discrimination, 1965
Women, 1979
_ ILO Freedom of Association and Protection of the Right to Organise
Convention, 1948
_ ILO Right to Organise and Collective Bargaining Convention, 1949
*****
_ United Nations Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms,
1999
Chapter 12 • Some Other Key Rights: Freedom of Thought, Conscience, Religion, Opinion, Expression,
Association and Assembly
Regional instruments
_ Inter-American Convention on the Prevention, Punishment, and
_ European Social Charter, 1961, and European Social Charter, 1996
(revised)
1. Introduction
This chapter will deal with a number of fundamental freedoms which
constitute some of the pillars of a democratic society that is respectful of human
rights.
Owing to space constraints, however, only the most important aspects of these
freedoms will be highlighted.
The Manual has hitherto emphasized the importance of a number of rights
such as the right not to be subjected to arbitrary detention, the right to a fair
trial and the
right to freedom from torture and other forms of ill-treatment. As a result, many
of the
chapters have also focused on protection of the human person in the course of
law
enforcement procedures.
This chapter, on the other hand, is concerned with rights or freedoms that are
exercised at all levels of society and in a wide variety of settings and situations,
for
example in a person’s religious or philosophical activities, educational
undertakings or
in the spoken or written word. However, in many situations where there are
problems
with the effective protection of human rights during law enforcement
procedures,
there is often a corresponding lack of tolerance for a person’s religious beliefs or
his or
her political or other convictions expressed at public gatherings, in books or in
the mass
media. To move towards full and comprehensive protection of the rights and
freedoms
of the individual, States should therefore take appropriate action to advance the
cause
of human rights in all relevant dimensions of society.
The chapter will deal first with freedom of thought, conscience and religion,
secondly with freedom of opinion and expression, and thirdly with freedom of
association and assembly.
Lastly, the role of the legal professions in protecting freedom of thought,
conscience, religion, opinion, expression, association and assembly will be
emphasized,
and the chapter will close with some concluding remarks.
Lawyers 523
2. The Right to Freedom of

Thought, Conscience and
Religion
This sub-section contains the text of the most important legal provisions
pertaining to freedom of thought, conscience and religion:
Article 18 of the Universal Declaration of Human Rights:
“Everyone has the right to freedom of thought, conscience and religion;
this right includes freedom to change his religion or belief, and freedom,
either alone or in community with others and in public or private, to
manifest his religion or belief in teaching, practice, worship and
observance.”
Article 18 of the International Covenant on Civil and Political Rights:
“1. Everyone shall have the right to freedom of thought, conscience and
religion. This right shall include freedom to have or to adopt a religion or
belief of his choice, and freedom, either individually or in community with
others and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom
to have or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to
such limitations as are prescribed by law and are necessary to protect public
safety, order, health, or morals or the fundamental rights and freedoms of
others.
4. The States Parties to the present Covenant undertake to have respect
for the liberty of parents and, when applicable, legal guardians to ensure
the religious and moral education of their children in conformity with their
own convictions.”
Article 8 of the African Charter on Human and Peoples’ Rights:
“Freedom of conscience, the profession and free practice of religion shall
be guaranteed. No one may, subject to law and order, be submitted to
measures restricting the exercise of these freedoms.”
Article 12 of the American Convention on Human Rights:
“1. Everyone has the right to freedom of conscience and of religion.
This includes freedom to maintain or to change one’s religion or beliefs,
and freedom to profess or disseminate one’s religion or beliefs either
individually or together with others, in public or in private.
2. No one shall be subject to restrictions that might impair his freedom
to maintain or to change his religion or beliefs.
3. Freedom to manifest one’s religion and beliefs may be subject only
to the limitations prescribed by law that are necessary to protect public
safety, order, health, or morals, or the rights or freedoms of others.
4. Parents or guardians, as the case may be, have the right to provide for
the religious or moral education of their children or wards that is in accord
with their own convictions.”
Article 9 of the European Convention on Human Rights:
“1. Everyone has the right to freedom of thought, conscience and
religion; this right includes freedom to change his religion or belief and
freedom, either alone or in community with others and in public or private,
to manifest his religion or belief, in worship, teaching, practice and
observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to
such limitations as are prescribed by law and are necessary in a democratic
society in the interests of public safety, for the protection of public order,
health or morals, or for the protection of the rights and freedoms of
others.”
The right to freedom of religion is further guaranteed by:
_ Article 5(d)(vii) of the International Convention on the Elimination of All Forms
of
Racial Discrimination;
_ Article 14 of the Convention on the Rights of the Child;
_ Article 9 of the African Charter on the Rights and Welfare of the Child; and
_ Article 4(i) of the Inter-American Convention on the Prevention, Punishment,
and
Eradication of Violence against Women.
Moreover, as will be further shown in Chapter 13, international human rights
law prohibits discrimination on the ground of religion (see, inter alia, articles
1(3), 13
and 55(c) of the Charter of the United Nations, article 2 of the Universal
Declaration,
articles 2(1), 4(1), 24(1) and 26 of the International Covenant on Civil and
Political
Rights; article 2 of the African Charter on Human and Peoples’ Rights, articles
1(1) and
27(1) of the American Convention on Human Rights and article 14 of the
European
Convention on Human Rights).
2.2 General meaning of the right to freedom of
thought, conscience and religion
2.2.1 Article 18 of the International Covenant on Civil and
Political Rights
As pointed out by the Human Rights Committee, the right to freedom of
thought, conscience and religion guaranteed by article 18(1) of the International
Covenant “is far-reaching and profound; it encompasses freedom of thought on
all
Lawyers 525
matters, personal conviction and the commitment to religion or belief, whether
manifested individually or in community with others.” Furthermore, “the freedom
of
thought and the freedom of conscience are protected equally with the freedom
of religion
and belief.”1 The Committee points out that “the fundamental character of these
freedoms is also reflected in the fact that this provision cannot be derogated
from, even in
time of public emergency,”2 an issue that will be further dealt with in Chapter 16.
It is noteworthy that article 18 “does not permit any limitations
whatsoever on the freedom of thought and conscience or on the freedom to
have or
adopt a religion or belief of one’s choice. These freedoms are protected
unconditionally…”3 On the other hand, as regards the right to freedom of
conscience,
the Human Rights Committee held in the case of Westerman, that it does not as
such
imply the right to refuse all obligations imposed by law, nor does it provide
immunity
from criminal liability in respect of every such refusal.4
The Committee also importantly underlines that, on the basis of articles 18(2)
and 17 of the Covenant, “no one can be compelled to reveal his thoughts or
adherence
to a religion or belief.”5 In other words, every man or women has the right to
keep his or
her religion or belief an exclusively private matter in all situations.
The Human Rights Committee further states that “article 18 protects theistic,
non-theistic and atheistic beliefs, as well as the right not to profess any religion
or belief.
The terms ‘belief’ and ‘religion’ are to be broadly construed. Article 18 is not
limited in
its application to traditional religions or to religions and beliefs with institutional
characteristics or practices or practices analogous to those of traditional
religions. The
Committee therefore views with concern
any tendency to discriminate against any religion or belief for any reason,
including the fact that they are newly established, or represent religious
minorities that may be the subject of hostility on the part of a predominant
religious community.”6
The Human Rights Committee further observes
“that the freedom to ‘have or to adopt’ a religion or belief necessarily
entails the freedom to choose a religion or belief, including the right to
replace one’s current religion or belief with another or to adopt atheistic
views, as well as the right to retain one’s religion or belief. Article 18.2 bars
coercion that would impair the right to have or adopt a religion or belief,
including the use of threat of physical force or penal sanctions to compel
believers or non-believers to adhere to their religious beliefs and
congregations, to recant their religion or belief or to convert.”7
1See General Comment No. 22 (Article 18) in UN doc. HRI/GEN/1/Rev.5, Compilation of General Comments
and General
Recommendations adopted by Human Rights Bodies, p. 144, para. 1 (hereinafter referred to as United
Nations Compilation of General Comments).
2Ibid., loc. cit.
4Communication No. 682/1996, P. Westerman v. the Netherlands (Views adopted on 3 November 1999), in
UN doc. GAOR,
A/55/40 (vol. II), p. 46, para. 9.3.
6Ibid., p. 144, para. 2.
7Ibid., p. 145, para. 5.
The Committee adds that “policies or practices having the same intention or
effect, such as, for example, those restricting access to education, medical care,
employment or the rights guaranteed by article 25 [i.e. the right to participate in
government] and other provisions of the Covenant, are similarly inconsistent
with
article 18(2). The same protection is enjoyed by holders of all beliefs of a non-
religious
nature.”8
2.2.2 Article 8 of the African Charter on Human and Peoples’ Rights
Article 8 of the African Charter on Human and Peoples’ Rights is brief. It
merely stipulates that “freedom of conscience, the profession and free practice
of
religion shall be guaranteed” and that “no one may, subject to law and order, be
submitted to measures restricting the exercise of these freedoms.” It is
noteworthy that
this provision is silent on the question of freedom of thought and also on the
freedom
to adopt or change a religion or belief according to one’s own convictions.
In a case against Zaire, the African Commission on Human and Peoples’
Rights held that “the harassment of the Jehovah’s Witnesses and religious
leaders,
including assassinations, destruction of religious structures and death threats”
constituted a violation of article 8 of the Charter, since the Government had
“presented
no evidence that the practice of their religion in any way [threatened] law and
order”.9
2.2.3 Article 12 of the American Convention on Human Rights
The right to freedom of conscience and religion as protected by article 12 of
the American Convention on Human Rights is in many ways similar to the
freedoms
guaranteed by article 18 of the International Covenant. However, in the
Convention
freedom of thought is not linked to these freedoms but to the right to freedom of
expression set forth in article 13.
The right to freedom of conscience and religion under article 12 of the
American Convention also includes “freedom to maintain or to change one’s
religion
of beliefs”, a freedom that is strengthened by article 12(2) of the Convention,
according
to which “no one shall be subject to restrictions that might impair his freedom to
maintain or to change his religion or beliefs.” It follows, a fortiori, that no one
may be
subject to “coercion” – the term used in article 18(2) of the Covenant – for
purposes of
either preventing a person from, or obliging a person to, maintain or change his
or her
religion or beliefs. In other words, a person’s religion or beliefs must at all times
be fully
voluntary.
Freedom of conscience and religion as protected by article 12 of the American
Convention is included in the list of non-derogable rights in article 27(2) and
must
therefore be guaranteed also “in time of war, public danger, or other emergency
that
threatens the independence or security” of the State party concerned (art. 27(1)
of the
Convention).
Lawyers 527
8Ibid., loc. cit.
9ACHPR World Organisation against Torture and Others v. Zaire, Communications Nos. 25/89, 47/90, 56/91,
100/93, decision adopted
during the 19th session, March 1996, para. 71 of the text as published at:
http://www.up.ac.za/chr/ahrdb/acomm_decisions.html
Article 12 of the American Convention was considered in the case of Olmedo
Bustos et Al. v. Chile – also called The Last Temptation of Christ case –
concerning the
annulment by the Chilean courts of an administrative decision taken by the
Cinematographic Classification Council approving the exhibition of the film The
Last
Temptation of Christ for an audience of a minimum of 18 years of age. The
applicants
submitted, inter alia, that their freedom of conscience had been violated
because of the
censorship of the film, which implied that a group of people with a specific
religion
decided what other people could see.10 In its judgment the Inter-American Court
of
Human Rights pointed out that “the right to freedom of conscience and religion
allows
everyone to maintain, change, profess and disseminate his religion or beliefs,”
adding
that this right is one of the foundations of democratic society, which, in its
religious
dimension, “constitutes a far–reaching element in the protection of the
convictions of
those who profess a religion and in their way of life”.11 However, in this case
there was
no evidence, according to the Court, to prove that any of the freedoms embodied
in this
article had been violated; “the prohibition of the exhibition of the film ‘The Last
Temptation of Christ’ did not impair or deprive anyone of their right to maintain,
change, profess or disseminate their religion or beliefs with total freedom.”12 As
will be
seen below, however, the prohibition did violate the right to freedom of thought
and
expression set forth in article 13 of the Convention.
2.2.4 Article 9 of the European Convention on Human Rights
Article 9(1) of the European Convention on Human Rights guarantees “the
right to freedom of thought, conscience and religion; this right includes the
freedom to
change [one’s] religion or belief.” In terms very similar to those used in article
18(1) of
the Covenant, article 9(1) of the European Convention also protects the freedom
of
every person, “either alone or in community with others and in public or private,
to
manifest his religion or belief, in worship, teaching, practice and observance”.
In the case of Kokkinakis v. Greece, the European Court of Human Rights held
that “freedom of thought, conscience and religion” as enshrined in article 9
“is one of the foundations of a ‘democratic society’ within the meaning of
the Convention. It is, in its religious dimension, one of the most vital
elements that go to make up the identity of believers and their conception
of life, but it is also a precious asset for atheists, agnostics, sceptics and the
unconcerned. The pluralism indissociable from a democratic society,
which has been dearly won over the centuries, depends on it.”13
Yet, as made clear by the same Court in the case of Kalaç v. Turkey, article 9
“does not protect every act motivated or inspired by a religion or belief.
Moreover, in exercising his freedom to manifest his religion, an individual
may need to take his specific situation into account.”14
10I-A Court HR, The Case of Olmedo Bustos et Al. v. Chile, judgment of 5 February 2001, Series C, No. 73.
The version used in this
context is the unedited text found on the Court’s web site: www.corteidh.or.cr/seriecing/C, para. 45.
11Ibid., para. 79.
12Ibid., loc. cit.
31.
14Eur. Court HR, Case of Kalaç v. Turkey, judgment of 1 July 1997, Reports 1997-IV, p. 1199 at p. 1209,
para.27.
This case arose out of a complaint brought by Mr. Kalaç, a judge advocate in
the Turkish army, who was compelled to retire for having “adopted unlawful
fundamentalist opinions”; he was considered to be at least a de facto member of
the
Muslim Süleyman sect.15 According to the Government, his compulsory
retirement
“was intended to remove from the military legal service a person who had
manifested
his lack of loyalty to the foundation of the Turkish nation, namely secularism,
which it
was the task of the armed forces to guarantee”.16 The applicant argued, on the
other
hand, that he had been unaware of the existence of the Süleyman sect and that
domestic
law gave no indication as to the meaning of the expression “unlawful
fundamental
opinions”, given as grounds for his compulsory retirement.17
The European Court concluded, however, that there had been no violation of
article 9 in this case. It held, in particular, that
“In choosing to pursue a military career Mr Kaliç was accepting of his own
accord a system of military discipline that by its very nature implied the
possibility of placing on certain of the rights and freedoms of members of
the armed forces limitations incapable of being imposed on civilians …
States adopt for their armies disciplinary regulations forbidding this or that
type of conduct, in particular an attitude inimical to an established order
reflecting the requirements of military service.”18
The Court noted that it was not contested “that the applicant, within the limits
imposed by the requirements of military life, was able to fulfil the obligations
which
constitute the normal forms through which aMuslim practises his religion”. He
was, in
particular, permitted to pray five times a day and to perform his other religious
duties,
such as keeping the fast of Ramadan and attending Friday prayers at the
mosque.19
Lastly, the SupremeMilitary Council’s order was not based on the applicant’s
“religious
opinions and beliefs or the way he performed his religious duties but on his
conduct
and attitude”, which, according to the Turkish authorities, “breached military
discipline
and infringed the principle of secularism”.20 There had not therefore been any
breach
of article 9 in this case. It should be pointed out that, since the Court concluded
that the
applicant’s compulsory retirement did not constitute an interference with his
right to
freedom of religion, it was not necessary to deal with the case under article 9(2)
of the
Convention.
The right to freedom of thought, conscience and religion is far-reaching
and covers all matters relating to one’s personal convictions. It protects
not only religious people but also, for instance, atheists, agnostics,
sceptics
and the indifferent.
Lawyers 529
16Ibid., p. 1208, para. 25.
17Ibid., p. 1208, para. 24.
18Ibid., p. 1209, para. 28.
19Ibid., p. 1209, para. 29.
20Ibid., p. 1209, para. 30.
The right to freedom of thought, conscience and religion also implies that
every person has the unconditional right to have and adopt a religion of
his or her choice. This freedom includes the right to change one’s religion.
Every person has the right not to be coerced or otherwise compelled to
maintain, adopt or change a religion.
The right to freedom of thought, conscience and religion, including the
freedom to have, adopt or change religion according to one’s choice, are
protected unconditionally, although freedom of conscience does not imply
a
right to refuse all obligations imposed by law.
No limitations may be imposed on the freedom to adopt or change a
religion of one’s choice.
American Convention on Human Rights, freedom of thought, conscience
and religion cannot be derogated from in any circumstances.
Freedom of thought, conscience and religion is a cornerstone of a
democratic society/a society respectful of human rights.
2.3 The right to manifest one’s religion or belief
Article 18(1) of the International Covenant guarantees the freedom to
manifest one’s religion or belief “either individually or in community with others
and in
public or private” and the freedom to do so “in worship, observance, practice
and
teaching”. As noted by the Human Rights Committee, it is thus a freedom that
“encompasses a broad range of acts. The concept of worship extends to ritual
and
ceremonial acts giving direct expression to belief, as well as various practices
integral to
such, including the building of places of worship, the use of ritual formulae and
objects,
the display of symbols, and the observance of holidays and days of rest. The
observance and practice of religion or belief may include not only ceremonial
acts but
also such customs as the observance of dietary regulations, the wearing of
distinctive
clothing or head coverings, participation in rituals associated with certain stages
of life,
and the use of a particular language customarily spoken by a group. In addition,
the
practice and teaching of religion or belief includes acts integral to the conduct
by
religious groups of their basic affairs, such as the freedom to choose their
religious
leaders, priests and teachers, the freedom to establish seminaries or religious
schools
and the freedom to prepare and distribute religious texts or publications.”21
The Committee expressed concern, for instance, regarding provisions in the
Freedom of Conscience and Religion Organizations Act in Uzbekistan “that
require
religious organizations and associations to be registered to be entitled to
manifest their
religion and beliefs” and article 240 of the Uzbek Penal Code, “which penalizes
the
failure of leaders of religious organizations to register their statutes”. The
Committee
strongly recommended that these provisions be abolished since they were not in
conformity with article 18(1) and (3) of the Covenant. It further recommended
that
criminal procedures initiated on the basis of these provisions should be
discontinued
and convicted persons pardoned and compensated.22
*****
As noted above, article 8 of the African Charter on Human and Peoples’
Rights is the most laconic of the provisions considered in this chapter since it
merely
guarantees “the profession and free practice of religion”, adding that “no one
may,
subject to law and order, be submitted to measures restricting the exercise of
these
freedoms.”
*****
According to article 12(1) of the American Convention on Human Rights, the
right to freedom of conscience and religion includes “freedom to profess or
disseminate one’s religion or beliefs either individually or together with others, in
public
or in private”.
*****
Under article 9(1) of the European Convention on Human Rights, the right to
freedom of religion includes “freedom, either alone or in community with others
and in
public or private, to manifest [one’s] religion or belief, in worship, teaching,
practice
and observance”. In the case of Kokkinakis v. Greece, the European Court held
that,
“while religious freedom is primarily a matter of individual conscience, it also
implies,
inter alia, freedom to ‘manifest (one’s) religion’. Bearing witness in words and
deeds is
bound up with the existence of religious convictions”.23 It added that, according
to
article 9 of the European Convention,
“freedom to manifest one’s religion is not only exercisable in community
with others, ‘in public’ and within the circle of those whose faith one
shares, but can also be asserted ‘alone’ and ‘in private’; furthermore, it
includes in principle the right to try to convince one’s neighbour, for
example through ‘teaching’, failing which, moreover, ‘freedom to change
(one’s) religion or belief’, enshrined in Article 9, would be likely to remain a
dead letter.”24
The case of Cha’are Shalom ve Tsedek v. France raised the issue of permits to
perform ritual slaughters in France. The applicant association complained that
articles 9
and 14 of the European Convention had been violated by the refusal of the
French
authorities to grant it “the approval necessary for it to authorise its own ritual
slaughterers to perform ritual slaughter, in accordance with religious
prescriptions of its
members,” and by their granting such approval to the Joint Rabbinical
Committee
(ACIP) alone.25 The applicant association submitted that the conditions for ritual
Lawyers 531
31.
24Ibid., loc. cit.
25Eur. Court HR, Case of Cha’are Shalom Ve Tsedek v. France, judgment of 27 June 2000; the text used is
the unedited text found on the
Court’s website: http://hudoc.echr.coe.int, para. 58.
slaughter as performed by the slaughterers authorized by ACIP “no longer
satisfied the
very strict requirements of the Jewish religion” so that ultra-orthodox Jews could
not
obtain perfectly pure or glatt meat.26 In their view, the refusal to approve it for
purposes
of slaughter could not be justified under article 9(2) of the Convention and was a
disproportionate and discriminatory measure contrary to article 14 thereof.27
Referring to the text of article 9(1), the Court noted that it was not contested
“that ritual slaughter, as indeed its name indicates, constitutes a rite or ‘rite’ (the
word in
the French text of the Convention corresponding to ‘observance’ in the English),
whose purpose is to provide Jews with meat from animals slaughtered in
accordance
with religious prescriptions, which is an essential aspect of practice of the Jewish
religion”.28
The question next arose whether the refusal to authorize the applicant
association to approve its own ritual slaughterers constituted an interference
with their
freedoms under article 9(1) of the Convention. In the opinion of the Court, “there
would be interference with the freedom to manifest one’s religion only if the
illegality of
performing ritual slaughter made it impossible for ultra-orthodox Jews to eat
meat
from animals slaughtered in accordance with the religious prescriptions they
considered applicable.” However, this was not the case, since it was not
contested that
the applicant association could easily obtain supplies of glatt meat from Belgium.
It was
further apparent from the material before the Court that a number of butchers’
shops
operating under the control of ACIP made meat certified glatt.29 Although the
applicant
association did not trust the ritual slaughters authorized by ACIP, the Court took
the
view that
“the right to freedom of religion guaranteed by Article 9 of the Convention
cannot extend to the right to take part in person in the performance of
ritual slaughter and the subsequent certification process, given that ... the
applicant association and its members are not in practice deprived of the
possibility of obtaining and eating meat considered by them to be more
compatible with religious prescriptions.”30
As it had not been established that Jews belonging to the applicant association
could not obtain glatt meat, or that the applicant could not supply them with it
by
reaching an agreement with the ACIP, in order to be able to engage in ritual
slaughter
under cover of the approval granted to the ACIP, the Court concluded “that the
refusal
of approval complained of did not constitute an interference with the applicant
association’s right to freedom to manifest its religion”.31 It was not necessary
therefore
for the Court to rule on the compatibility of the restriction challenged by the
applicant
under article 9(2) of the Convention. The Court observed, nevertheless, that,
even on
the assumption that the impugned measure “could be considered an
interference with
the right to freedom to manifest one’s religion,” it was prescribed by law and
pursued a
26Ibid., para. 60.
27Ibid., para. 61.
28Ibid., para. 73.
30Ibid., para. 82.
31Ibid., para. 83.
legitimate aim, namely, “the protection of public health and public order, in so
far as
organisation by the State of the exercise of worship is conducive to religious
harmony
and tolerance”. Having regard to the margin of appreciation left to the
Contracting
States, particularly with regard to establishment of the delicate relations
between the
State and religions, it could not be considered excessive or disproportionate and
the
measure was not, therefore, in breach of article 9(2).32
As to the question of alleged discrimination, the Court concluded that there
had been no violation of article 9 in conjunction with article 14 of the Convention.
It
noted in particular that the difference of treatment which resulted from the
measure
complained of “was limited in scope”. In so far as there was a difference of
treatment, it
pursued a legitimate aim, and there was a reasonable relationship of
proportionality
between the means employed and the aim sought to be realized. The difference
of
treatment therefore “had an objective and reasonable justification within the
meaning
of the Court’s consistent case-law”.33
2.3.1 Limitations on the right to manifest one’s religion or belief
Among the freedoms guaranteed by article 18 of the International Covenant,
only the freedom to manifest one’s religion or beliefs may be restricted.
According to
article 18(3), this freedom “may be subject only to such limitations as are
prescribed by
law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others”. The Human Rights Committee
emphasizes that this provision “is to be strictly interpreted: restrictions are not
allowed
on grounds not specified there, even if they would be allowed as restrictions to
other
rights protected in the Covenant, such as national security. Limitations may be
applied
only for those purposes for which they were prescribed and must be directly
related and
proportionate to the specific need on which they are predicated.”34 The
Committee
importantly adds that limitations on the right to manifest one’s religion or beliefs
“must
not be applied in a manner that would vitiate the rights guaranteed in article
18”.35
Lastly, the limitations must not, of course, “be imposed for discriminatory
purposes or
applied in a discriminatory manner”.36
In resorting to limitations on the right to manifest one’s religion or beliefs,
States parties must therefore ensure that they
_ comply with the principle of legality (“prescribed by law”);
_ are imposed exclusively for one or more of the objectives enumerated in article
18(3);
_ are necessary to achieve the objective concerned (principle of proportionality);
and,
lastly,
_ are not discriminatory but applied in an objective and reasonable manner.
Lawyers 533
32Ibid., para. 84.
33Ibid., paras. 87-88. The Court, sitting as a Grand Chamber, was not unanimous in this case. By 12 votes to
5 it concluded that
there was no violation of article 9 of the Convention, while the vote on article 9 in conjunction with article 14
was 12 to 7.
35Ibid., loc. cit.
36Ibid.
With regard to the concept of morals as a possible justification for limitations
on the freedom to manifest one’s religion or beliefs, the Committee states that it
derives
from many social, philosophical and religious traditions and that, consequently,
“limitations on the freedom to manifest a religion or belief for the purpose of
protecting
morals must be based on principles not deriving exclusively from a single
tradition.”37
It further states that “persons already subject to certain legitimate restraints,
such as prisoners, continue to enjoy their rights to manifest their religion or
belief to the
fullest extent compatible with the specific nature of the constraint.”38
In the Sing Bhinder v. Canada case, the author, who was a Sikh, complained of a
violation of article 18 of the Covenant as a consequence of the termination of his
labour
contract following his refusal to wear safety headgear during his work. The
Committee
examined this issue under both article 18 and article 26 of the Covenant and
concluded
that, if the requirement to wear a hard hat were regarded as raising an issue
under article
18, it was a limitation justified by reference to the grounds laid down in article
18(3). On
the other hand, if it was considered as a de facto discrimination against persons
of the
Sikh religion under article 26, “the legislation requiring that workers in the
federal
employment be protected from injury and electric shock by the wearing of hard
hats is
to be regarded as reasonable and directed towards objective purposes that are
compatible with the Covenant.”39
*****
The grounds for allowing limitations on the freedom to manifest one’s
religion or beliefs contained in article 12(3) of the American Convention on
Human
Rights are similar to those found in article 18(3) of the International Covenant.
Limitations may thus be imposed provided that they are “prescribed by law” and
“are
necessary to protect public safety, order, health, or morals, or the rights or
freedoms of
others”. The measures resorted to must, in other words, be proportionate to the
legitimate aim pursued.
*****
According to article 9(2) of the European Convention on Human Rights,
“freedom to manifest one’s religion or beliefs shall be subject only to such
limitations as
are prescribed by law and are necessary in a democratic society in the interests
of public
safety, for the protection of public order, health or morals, or for the protection
of the
rights and freedoms of others.” The grounds enumerated cover in substance
those
found in the other two treaties. There is thus an important convergence on the
major
issue of limitations on the freedom to manifest one’s religion or beliefs. However,
article 9(2) of the European Convention adds the condition that limitations for
the
reasons invoked must be necessary “in a democratic society”. The necessity test
must
therefore be made in the light of the needs of a society based on a democratic
constitutional order.
37Ibid.
38Ibid., pp. 145-146, para. 8.
39Communication No. 208/1986, K. Sing Bhinder v. Canada (Views adopted on 9 November 1989), in UN
doc. GAOR, A/45/40
(vol. II), p. 54, para. 6.2.
Article 9 was examined by the European Court of Human Rights in the case
of Kokkinakis v. Greece concerning a Jehovah’s Witness convicted of proselytism
in
Greece, where, by virtue of Law No, 1363/1938, as amended by Law No.
1672/1939,
proselytism was made a crime during the dictatorship of Metaxas (1936-1940).40
The
applicant was sentenced by the Lasithi Criminal Court to four months’
imprisonment,
convertible into a pecuniary penalty, and to a fine of 10,000 drachmas. On
appeal, the
Crete Court of Appeal reduced the prison sentence to three months’
imprisonment
converted into a pecuniary penalty.41 The applicant and his wife had been
arrested at the
home of a women who was married to the cantor at a local Orthodox church. The
applicant mainly complained that this conviction was an unlawful restriction of
the
exercise of his right to freedom of religion.42
The European Court considered that Mr. Kokkinakis’ conviction amounted
to an interference with his right to manifest his religion or belief, which would be
contrary to article 9 unless it was: (1) “prescribed by law”; (2) directed at one or
more of
the legitimate aims in paragraph 2; and (3) “necessary in a democratic society”
for
achieving them.43 These various questions were dealt with as follows by the
Court:
Was the interference “prescribed by law”? In reply to the applicant’s
argument that the Greek legislation did not describe the “objective substance” of
the
offence of proselytism,44 the Court noted that
“the wording of many statutes is not absolutely precise. The need to avoid
excessive rigidity and to keep pace with changing circumstances means that
many laws are inevitably couched in terms which, to a greater or lesser
extent, are vague ... Criminal-law provisions on proselytism fall within this
category. The interpretation and application of such enactments depends
on practice.”45
In the case before it there was, however, “a body of settled national case-law ...
which had been published and was accessible”, thereby supplementing the
terms of the
1936 Law and enabling the applicant “to regulate his conduct in the matter”; it
followed
that the measure complained of was “prescribed by law” within the meaning of
article 9(2) of the European Convention.46
Was the measure imposed for a legitimate aim? The Court concluded that,
having regard to the circumstances of the case and the actual terms of the
relevant court
decisions, “the impugned measure was in pursuit of a legitimate aim under
Article 9 § 2,
namely the protection of the rights and freedoms of others, relied on by the
Government”; the Government had in fact submitted “that a democratic State
had to
ensure the peaceful enjoyment of the personal freedoms of all those living on its
territory” and that article 9(2) “would in practice be rendered wholly nugatory”
unless
Lawyers 535
16.
41Ibid., pp. 8-10, paras. 9-10.
42Ibid., p. 16, para. 28.
43Ibid., p. 18, para. 36.
44Ibid., p. 19, para. 38.
45Ibid., p. 19, para. 40.
46Ibid., pp. 19-20, paras. 40-41.
the State were “vigilant to protect a person’s religious beliefs and dignity from
attempts
to influence them by immoral and deceitful means”.47
Was the prohibition “necessary in a democratic society”? This is the
crucial test that numerous cases have failed to pass under various articles of the
European Convention on Human Rights. The test of what is “necessary in a
democratic society” is the ultimate safeguard against interference with the
enjoyment of
a person’s fundamental freedoms that cannot possibly be considered necessary
in a
society that is pluralistic and tolerant.
Although the Contracting States have “a certain margin of appreciation ... in
assessing the existence and extent of the necessity of an interference, ... this
margin is
subject to European supervision, embracing both the legislation and the
decisions
applying it, even those given by an independent court.” The task of the European
Court
in the Kokkinakis v. Greece case was therefore “to determine whether the
measures taken
at national level were justified in principle and proportionate”.48
As to the meaning of proselytism, the Court held that, first of all:
“a distinction has to be made between bearing Christian witness and
improper proselytism. The former corresponds to true evangelism, which
a report drawn up in 1956 under the auspices of the World Council of
Churches describes as an essential mission and responsibility of every
Christian and every Church. The latter represents a corruption or
deformation of it. It may, according to the same report, take the form of
activities offering material or social advantages with a view to gaining new
members for a Church or exerting improper pressure on people in distress
or in need; it may even entail the use of violence or brainwashing; more
generally, it is not compatible with respect for the freedom of thought,
conscience and religion of others.”49
An examination of section 4 of Law No. 1363/1938 showed, however, that
the criteria adopted by the Greek legislature were reconcilable with the
foregoing if and
insofar as they were “designed only to punish improper proselytism, which the
Court
[did] not have to define in the abstract in the present case”.50 The Court noted,
on the
other hand, “that in their reasoning the Greek courts established the applicant’s
liability
by merely reproducing the wording of article 4 and did not sufficiently specify in
what
way the accused had attempted to convince his neighbour by improper means”.
Indeed,
“none of the facts they set out warranted that finding”.51 It followed that it had
not
been shown “that the applicant’s conviction was justified in the circumstances of
the
case by a pressing social need” and the contested measure did not therefore
appear “to
have been proportionate to the legitimate aim pursued or, consequently,
‘necessary in a
47Ibid., p. 20, paras. 44 and 42.
48Ibid., p. 21, para. 47.
49Ibid., p. 21, para. 48.
50Ibid., loc. cit. According to article 4(2) of Law No. 1363/1938 as amended, “proselytism” meant, “in
particular, any direct or
indirect attempt to intrude on the religious beliefs of a person of a different religious persuasion
(eterodoxos), with the aim of
undermining those beliefs, either by any kind of inducement or promise of an inducement or moral support
or material assistance, or
by fraudulent means or by taking advantage of his inexperience, trust, need, low intellect or naïvety”, p. 12,
para. 16.
51Ibid., p. 21, para. 49.
democratic society ... for the protection of the rights and freedoms of others’”.
There
had, in other words, been a violation of article 9 in the case.52
A violation of article 9 of the European Convention was also found in the case
of Serif v. Greece, which – against a complex historical background – concerned
the right
of Muslims to organize elections for the post of Mufti in Rodopi. That right was
overturned on 24 December 1990 by the Government through a legislative
decree that
was retroactively validated when the Greek Parliament passed Law No. 1920 on
4
February 1991. Requests had been made to the Government for the organization
of
elections to fill the post of Mufti in Rodopi following the death of the previous
Mufti.
In the absence of a reply, elections were held at the mosques after prayers on 28
December 1990. The applicant was elected Mufti and, together with other
Muslims,
challenged before the Supreme Court the Government’s decision to appoint
another
person to that position.53 On 12 December 1994, the Salonika Criminal Court
found
the applicant guilty under articles 175 and 176 of the Criminal Code “for having
usurped the functions of a minister of a ‘known religion’ and for having publicly
worn
the dress of such a minister without having the right to do so”.54 The applicant
was
given a commutable sentence of eight months’ imprisonment, which was
reduced to six
months on appeal, the Court of Appeal having upheld the conviction. The
sentence
was commuted to a fine.55
Before the European Court, the applicant complained that his conviction
amounted to unjustified interference with his right to be free to exercise his
religion
together with all those who turned to him for spiritual guidance.56
The Court concluded in the first place that the applicant’s conviction
amounted to “an interference with his right under Article 9 § 1 of the
Convention, ‘in
community with others and in public ... to manifest his religion ... in worship
[and]
teaching’”; this followed from the facts on which the conviction was based,
according
to which the applicant had issued a message about the religious significance of a
feast,
delivered a speech at a religious gathering, worn the dress of a religious leader
and so
forth.57 The Court did not, however, consider it necessary to deal with the
question
whether the interference was “prescribed by law”, since it was in any event
contrary
to article 9 on other grounds.
The Court next accepted that the interference pursued a legitimate aim
under article 9(2) of the Convention, namely protection of “public order”, since
“the
applicant was not the only person claiming to be the religious leader of the local
Muslim
community”, the authorities having appointed another person. The Government
had
argued that the interference served a legitimate purpose because by protecting
the
authority of the lawful mufti “the domestic courts sought to preserve order in the
particular religious community and in society at large.”58
Lawyers 537
52Ibid., pp. 21-22, paras. 49-50.
53Eur. Court HR, Case of Serif v. Greece, judgment of 14 December 1999, Reports 1999-IX, p. 79, paras. 9-
12.
54Ibid., pp. 79-80, paras. 13, 15 and 16; the quote is from para. 13.
55Ibid., p. 80, paras. 16-17.
56Ibid., p. 84, para. 36.
58Ibid., p. 86, paras. 43 and 45.
Lastly, in considering whether the interference was necessary in a
democratic society, the Court recalled its ruling in the Kokkinakis case,
according to
which “freedom of thought, conscience and religion is one of the foundations of a
‘democratic society’”, pluralism being “indissociable” from such a society.59 It
was true,
nevertheless, that
“in a democratic society it may be necessary to place restrictions on
freedom of religion to reconcile the interests of the various religious
groups ... However, any such restriction must correspond to a ‘pressing
social need’ and must be ‘proportionate to the legitimate aim pursued’.”60
Yet in the Court’s view, “punishing a person for merely acting as the religious
leader of a group that willingly followed him can hardly be considered compatible
with
the demands of religious pluralism in a democratic society.”61 The Court was “not
oblivious of the fact that in Rodopi there existed, in addition to the applicant, an
officially appointed mufti” and that the Government had argued “that the
applicant’s
conviction was necessary in a democratic society because his actions
undermined the
system put in place by the State for the organisation of the religious life of the
Muslim
community in the region”. The Court recalled, however, that there was “no
indication
that the applicant attempted at any time to exercise the judicial and
administrative
functions for which the legislation on the muftis and other ministers of ‘known
religions’ makes provisions”. It did not consider that “in democratic societies, the
State
needs to take measures to ensure that religious communities remain or are
brought
under a unified leadership”.62
It only remained for the Court to consider the Government’s argument “that,
in the particular circumstances of the case, the authorities had to intervene in
order to
avoid the creation of tension among the Muslims in Rodopi and between the
Muslims
and the Christians of the area as well as Greece and Turkey”. To this the Court
gave the
following important reply:
“Although the Court recognises that it is possible that tension is created in
situations where a religious or any other community becomes divided, it
considers that this is one of the unavoidable consequences of pluralism.
The role of the authorities in such circumstances is not to remove the cause
of tension by eliminating pluralism, but to ensure that the competing
groups tolerate each other.”63
The Court noted that, “apart from a general reference to the creation of
tension, the Government did not make any allusion to disturbances among the
Muslims
in Rodopi that had actually been or could have been caused by the existence of
two
religious leaders.” It considered, moreover, that nothing had been adduced “that
could
warrant qualifying the risk of tension between the Muslims and Christians or
between
Greece and Turkey as anything more than a very remote possibility”.64
59Ibid., p. 87, para. 49.
60Ibid., loc. cit.
61Ibid., p. 88, para. 51.
62Ibid., p. 88, para. 52.
63Ibid., p. 88, para. 53.
64Ibid., loc. cit.
In the light of all these considerations, the Court concluded that it had not
been shown that the applicant’s conviction “was justified in the circumstances of
the
case by ‘a pressing social need’”. As a result, the interference with his right, in
community with others and in public, to manifest his religion in worship and
teaching
was not “necessary in a democratic society ... for the protection of public order”
under
Article 9 § 2 of the Convention.65 It followed that article 9 had been violated.
The third case relating to article 9 of the European Convention on Human
Rights is that of Buscarini and Others v. San Marino concerning the obligation
imposed on
the applicants to take an oath containing a reference to the Holy Gospels on pain
of
forfeiting their parliamentary seats in the Republic of San Marino. In their view, it
had
been shown that in the Republic “at the material time the exercise of a
fundamental
political right, such as holding parliamentary office, was subject to publicly
professing a
particular faith” in breach of article 9 of the Convention.66 For its part the
Government
maintained “that the wording of the oath in question was not religious but,
rather,
historical and social in significance and based on tradition”. It did not, therefore,
amount to a limitation of the applicants’ freedom of religion.67
Reiterating its fundamental ruling in the Kokkinakis case on freedom of
thought, conscience and religion, the Court added that this freedom “entails,
inter alia,
freedom to hold or not to hold religious beliefs and to practice or not to practice
a
religion”. The obligation for the applicants to take the oath on the Gospels “did
indeed
constitute a limitation” within the meaning of article 9(2) of the Convention,
“since it
required them to swear allegiance to a particular religion on pain of forfeiting
their
parliamentary seats”.68 The question thus arose whether such interference could
be
justified as being prescribed by law and necessary in a democratic society for
one or
more of the legitimate aims set out in article 9(2).
The Court concluded that the measure was “prescribed by law”, since it was
based on section 55 of the Elections Act of 1958, which referred to the Decree of
27
June 1909 laying down the wording of the oath to be sworn by members of the
Parliament.69 Without determining in this case whether there were any
legitimate aims
justifying the interference within the meaning of article 9(2) of the Convention,
the
Court concluded that it was not in doubt that, in general, the law of San Marino
guarantees freedom of conscience and religion. In the instant case, however,
“requiring
the applicants to take oath on the Gospels was tantamount to requiring two
elected
representatives of the people to swear allegiance to a particular religion,” a
requirement
that was not compatible with article 9 of the Convention, which had therefore
been
violated.70 In other words, the interference was not necessary in a democratic
society.
Lawyers 539
65Ibid., p. 88, para. 54.
66Eur. Court HR, Case of Buscarini and Others v. San Marino, judgment of 18 February 1999, Reports 1999-I,
p. 612, paras. 12-13, and
p. 615, para. 30 (quotation).
67Ibid., p. 616, para. 32.
68Ibid., p. 616, para. 34.
69Ibid., p. 616, para. 35.
70Ibid., p. 617, para. 39.
2.3.2 Prohibitions on the freedom to manifest one’s religion or belief
Article 18 of the International Covenant must be read in conjunction with
article 20, according to which the following acts “shall be prohibited by law”:
_ any “propaganda for war” (art. 20(1)), and
_ any “advocacy of national, racial or religious hatred that constitutes incitement
to
discrimination, hostility or violence” (art. 20(2)).71
It follows that the manifestation of religion or beliefs must not at any time be
used as a tool for the encouragement of war or for advocacy of hatred. The
Human
Rights Committee confirms that no derogation made pursuant to article 4(1) of
the
Covenant “may be invoked as justification for a State party to engage itself,
contrary to
article 20, in propaganda for war, or in advocacy of national, racial or religious
hatred
that would constitute incitement to discrimination, hostility or violence”.72 The
fact
that States parties are legally bound to outlaw war propaganda and religious
incitement
to discrimination, hostility and violence implies that they also have a legal duty
to ensure
that this prohibition is respected in practice.
Every person has the right to manifest his or her religion either in private
or in public and either individually or in community with others.
The manifestation of one’s religion or beliefs may cover such activities as
worship, observance, practice, teaching, evangelization and rites.
The right to manifest one’s religion may be subjected to limitations,
provided that such limitations are
_ prescribed by law
_ imposed in order to protect a legitimate aim, namely public safety,
(public) order, health, morals or the rights and freedoms of others, and
_ necessary in order to protect the legitimate objective.
At the European level, the notion of a democratic society plays a pivotal
role in determining the necessity of measures limiting a person’s right to
manifest his or her religion or beliefs.
2.4 Freedom of religion and public school instruction
According to the Human Rights Committee, “the liberty of parents or legal
guardians to ensure that their children receive a religious and moral education in
conformity with their own convictions” under article 18(4) of the Covenant “is
related
to the guarantees of the freedom to teach a religion or belief stated in article
18.1”. This
means, inter alia, that article 18(4) of the Covenant “permits public school
instruction in
subjects such as the general history of religions and ethics if it is given in a
neutral and
72General Comment No. 29 (72) (Derogations from provisions of the Covenant during a state of
emergency), in UN doc.
GAOR, A/56/40 (vol. I), p. 206, para. 13(e).
objective way”, but that “public education that includes instruction in a particular
religion or belief is inconsistent with article 18.4 unless provision is made for
non-discriminatory exemptions or alternatives that would accommodate the
wishes of
parents and guardians.”73
In the case of Hartikainen v. Finland, the author complained of a violation of
article 18(4) of the Covenant as a consequence of the requirement in Finnish
legislation
that instruction in the history of religions and ethics should be given instead of
religious
instruction to students whose parents or legal guardians objected to religious
instruction. The author, who was a teacher and also a member of the Union of
Free
Thinkers in Finland, wanted such alternative classes to be neutral and non-
compulsory.
Disagreeing with the author, the Committee concluded that such alternative
instruction
in the history of religions and ethics was not in itself incompatible with article
18(4) of
the Covenant if “given in a neutral and objective way”, respecting “the
convictions of
parents and guardians who do not believe in any religion”. In any event, the
impugned
legislation expressly permitted parents and guardians who did not wish their
children to
be given either religious instruction or instruction in the history of religions and
ethics
to obtain exemption therefrom by arranging for them to receive comparable
instruction outside school.74
*****
Article 12(4) of the American Convention guarantees the right of parents and
guardians, as the case may be, to provide for the religious and moral education
of their
children or wards that is in accord with their own convictions.
*****
Although article 9 of the European Convention contains no similar guarantee,
the second sentence of article 2 of Protocol No. 1 to the Convention states that:
“In the exercise of any functions which is assumes in relation to education
and to teaching, the State shall respect the right of parents to ensure such
education and teaching in conformity with their own religious and
philosophical convictions.”
According to the European Court of Human Rights, this sentence, which is an
adjunct to the fundamental right to education guaranteed by the first sentence
of the
article,75
“is binding upon the Contracting States in the exercise of each and every
function – it speaks of ‘any functions’ – that they undertake in the sphere
of education and teaching, including that consisting of the organisation
and financing of public education”.76
Lawyers 541
74Communication No. R.9/40, E. Hartikainen v. Finland (Views adopted on 9 April 1981), in UN doc. GAOR,
A/36/40, p. 152,
para. 10.4.
75Eur. Court HR, Case of Kjeldsen, Busk Madsen and Pedersen, judgment of 7 December 1976, Series A, No.
23, p. 26, para. 52.
76Ibid., p. 24, para. 50.
The provision “aims in short at safeguarding the possibility of pluralism in
education, which possibility is essential for the preservation of the ‘democratic
society’
as conceived by the Convention. In view of the power of the modern State, it is
above
all through State teaching that this aim must be realised.”77 Article 2 of Protocol
No. 1
thus “enjoins the State to respect parents’ convictions, be they religious or
philosophical, throughout the entire State education programme” and it does not
therefore “permit a distinction to be drawn between religious instruction and
other
subjects”.78
However, the second sentence of article 2 of the Protocol
“does not prevent States from imparting through teaching or education
information or knowledge of a directly or indirectly religious or
philosophical kind. It does not even permit parents to object to the
integration of such teaching or education in the school curriculum, for
otherwise all institutionalised teaching would run the risk of proving
impracticable.”79
The same provision
“implies on the other hand that the State, in fulfilling the functions
assumed by it in regard to education and teaching, must take care that
information or knowledge included in the curriculum is conveyed in an
objective, critical and pluralistic manner. The State is forbidden to pursue
an aim of indoctrination that might be considered as not respecting
parents’ religious or philosophical convictions. That is the limit that must
not be exceeded.”80
In the case of Kjeldsen, Busk Madsen and Pedersen v. Denmark, the applicants
objected to the integrated and compulsory sex education in Danish primary
schools
and alleged that this violated their rights under, inter alia, article 2 of Protocol
No. 1 to
the Convention. However, after examining the Danish legislation, the Court
concluded
that the provision had not been violated. In its opinion, the legislation did not
entail
“overstepping the bounds of what a democratic State may regard as the public
interest”
and it “in no way [amounted] to an attempt at indoctrination aimed at
advocating a
specific kind of sexual behaviour”.81 The Court added, however, that, in order to
avoid
abuses in its application by a given school or teacher “the competent authorities
have a
duty to take the utmost care to see to it that parents’ religious and philosophical
convictions are not disregarded at this level by carelessness, lack of judgment or
misplaced proselytism.”82
77Ibid., p. 25, para. 50.
78Ibid., p. 25 , para. 51.
79Ibid., p. 26, para. 53.
80Ibid., loc. cit.
81Ibid., p. 27, para. 54.
82Ibid., p. 28, para. 54.
In the case of Campbell and Cosans, on the other hand, the Court concluded that
there had been a violation of the second sentence of article 2 of Protocol No. 1
as a
consequence of the existence of corporal punishment as a disciplinary measure
in the
schools attended by the applicants’ children, such punishment being contrary to
their
philosophical convictions.83
American Convention on Human Rights, parents or legal guardians
have the right to ensure that the religious and moral education of their
children is conveyed in accordance with their own convictions.
It is, however, compatible with the International Covenant to impart
public school instruction in subjects such as the general history of religions
and ethics provided that this is done in a neutral and objective manner.
Under the European Convention on Human Rights, the Contracting
States are legally bound to ensure that in each and every function that
they undertake in the field of education and teaching, the religious or
philosophical convictions of parents or legal guardians are respected.
This means that States have to take care to impart information or
knowledge in an objective, critical and pluralistic way and that they are
forbidden to pursue an aim of indoctrination.
2.5 State religion and religious minorities
The recognition of a religion as a so-called State religion or a religion that is
simply an official or traditional religion or a religion professed by a majority of
the
State’s population can easily imply that other religions are discriminated against.
However, as noted by the Human Rights Committee, this situation “shall not
result in
any impairment of the enjoyment of any of the rights under the Covenant,
including
articles 18 and 27, nor in any discrimination against adherents to other religions
or
non-believers”.84 It would, for instance, be contrary to the non-discrimination
provision in article 26 of the Covenant to adopt “measures restricting eligibility
for
government service to members of the predominant religion or giving economic
privileges to them or imposing special restrictions on the practice of other
faiths”.85
The Committee points out in this connection that article 20(2) of the
Covenant provides “important safeguards against infringements of the rights of
religious minorities and of other religious groups to exercise the rights
guaranteed by
articles 18 and 27, and against acts of violence or persecution directed towards
those
groups”.86
Lawyers 543
83Eur. Court HR, Case of Campbell and Cosans, judgment of 25 February 1982, Series A, No. 48, pp. 14-18,
paras. 32-38.
85Ibid., loc. cit.
86Ibid.
Lastly, the Committee stresses that “if a set of beliefs is treated as official
ideology in constitutions, statutes, proclamations of ruling parties, etc., or in
actual
practice, this shall not result in any impairment of the freedoms under article 18
or any
other rights recognized under the Covenant nor in any discrimination against
persons
who do not accept the official ideology or who oppose it.”87
The Human Rights Committee has emphasized that States parties to the
International Covenant on Civil and Political Rights have a legal duty to
ensure that there is no discrimination against adherents of different
religions or non-believers.
2.6 Conscientious objection on religious grounds
Although the right to conscientious objection is not expressly guaranteed by
the International Covenant, the Human Rights Committee “believes that such a
right
can be derived from article 18, inasmuch as the obligation to use lethal force
may
seriously conflict with the freedom of conscience and the right to manifest one’s
religion or belief. When this right is recognized by law or practice, there shall be
no
differentiation among conscientious objectors on the basis of the nature of their
particular beliefs; likewise, there shall be no discrimination against conscientious
objectors because they have failed to perform military service.”88
These views have been confirmed in several cases brought under the Optional
Protocol to the Covenant, such as that of Westerman v. the Netherlands, in which
the
author complained, inter alia, of a violation of article 18 as a consequence of his
being
sentenced to nine months’ imprisonment for refusing to wear a military uniform
as
ordered by a military officer. Prior to entering military service, the author had in
vain
tried to be recognized as a conscientious objector on the basis that the army was
“contrary to the destination of (wo)man”.89
The issue to be decided by the Committee was whether the imposition of
sanctions on the author “to enforce the performance of military duty was ... an
infringement of his right to freedom of conscience”. The Committee pointed out
that
the responsible authorities “evaluated the facts and arguments advanced by the
author
in support of his claim for exemption as a conscientious objector in the light of its
legal
provisions in regard to conscientious objection and that these legal provisions
[were]
compatible with the provisions of article 18”. It further observed that the author
had
“failed to satisfy” the State authorities “that he had an ‘insurmountable objection
of
conscience to military service ... because of the use of violent means’”. On this
basis, the
Committee concluded that there was “nothing in the circumstances of the case
which
[required it] to substitute its own evaluation of this issue for that of the national
authorities”.90 It followed that article 18 had not been violated.
87Ibid., para. 10.
88Ibid., para. 11.
89Communication No. 682/1996, Westerman v. the Netherlands (Views adopted on 3 November 1999), in
UN doc. GAOR,
A/55/40 (vol. II), pp. 41-43, paras. 2.1-2.7 and p. 46, para. 9.4.
90Ibid., p. 47, para. 9.5.
The question of conscientious objection may, however, also be examined
under articles 8 and 26 of the Covenant. Under article 8(3)(c)(ii), the term
“forced and
compulsory labour” shall not include “any service of a military character and, in
countries where conscientious objection is recognized, any national service
required by
law of conscientious objectors”. The Committee has, however, consistently found
a
violation of article 26 of the Covenant where the national alternative service is
disproportionately longer than the military service. This was the situation, for
instance, in the case of R. Maille v. France. French law required conscientious
objectors
to complete 24 months of alternative service instead of 12 months of military
service.
In this case the Committee concluded that article 26 of the Covenant had been
violated
“since the author was discriminated against on the basis of his conviction of
conscience”, the Government having failed to submit any reasons to show that
the
differentiation was based on “reasonable and objective criteria” that would
justify the
longer period of service.91
With regard to conscientious objection, the Committee further considers that
the exemption of only one group of conscientious objectors, such as the
Jehovah’s
Witnesses, and the inapplicability of exemption for all others cannot be
considered
reasonable, since “no differentiation shall be made among conscientious
objectors on
the basis of the nature of their particular beliefs.”92 Yet where the author had not
shown
“that his convictions as a pacifist [were] incompatible with the system of
substitute
service ... or that the privileged treatment accorded to Jehovah’s Witnesses
adversely
affected his rights as a conscientious objector against military service”, the
Committee
found that he had not been a victim of a violation of article 26 of the Covenant.93
The Human Rights Committee has accepted that the right to
conscientious objection can be derived from article 18 of the International
Covenant on Civil and Political Rights. This right is not unconditional
and the Committee may be reluctant to re-examine decisions taken by the
national authorities in this regard. However, when the right to
conscientious objection is recognized in national law, there must be no
discrimination between the persons concerned on the basis of their
particular beliefs.
Alternative/substitute service must not be disproportionately longer than
ordinary military service. Any distinction in this regard must be based on
reasonable and objective criteria.
Lawyers 545
91Ibid., Communication No. 689/1996, R. Maille v. France (Views adopted on 10 July 2000), p. 72, para. 10.4.
92Communication No. 402/1990, H. Brinkhof v. the Netherlands (Views adopted on 27 July 1993) in UN doc.
GAOR, A/48/40
(vol. II), p. 129, para. 9.3.
93Ibid., loc. cit.
3. The Right to Freedom of

Opinion and Expression
The main legal provisions dealt with in this subsection are:
Article 19 of the Universal Declaration of Human Rights:
“Everyone has the right to freedom of opinion and expression; this right
includes freedom to hold opinions without interference and to seek,
receive and impart information and ideas through any media and regardless
of frontiers.”
Article 19 of the International Covenant on Civil and Political Rights:
“1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and ideas of
all kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article
carries with it special duties and responsibilities. It may therefore be subject
to certain restrictions, but these shall only be such as are provided by law
and are necessary:
(a) For respect of the rights and reputation of others;
(b) For the protection of national security or of public order
(ordre public), or of public health or morals.”
Article 9 of the African Charter on Human and Peoples’ Rights:
“1. Every individual shall have the right to receive information.
2. Every individual shall have the right to express and disseminate his
opinions within the law.”
Article 13 of the American Convention on Human Rights:
“1. Everyone has the right to freedom of thought and expression. This
right includes freedom to seek, receive, and impart information and ideas
of all kinds, regardless of frontiers, either orally, in writing, in print, in the
form of art, or through any other medium of one’s choice.
2. The exercise of the right provided for in the foregoing paragraph
shall not be subject to prior censorship but shall be subject to subsequent
imposition of liability, which shall be expressly established by law to the
extent necessary to ensure:
a. respect for the rights or reputations of others; or
b. the protection of national security, public order, or public health
or morals.
3. The right of expression may not be restricted by indirect methods or
means, such as the abuse of government or private controls over
newsprint, radio broadcasting frequencies, or equipment used in the
dissemination of information, or by any other means tending to impede the
communication and circulation of ideas and opinion.
4. Notwithstanding the provisions of paragraph 2 above, public
entertainments may be subject by law to prior censorship for the sole
purpose of regulating access to them for the moral protection of childhood
and adolescence.
5. Any propaganda for war and any advocacy of national, racial, or
religious hatred that constitute incitements to lawless violence or to any
other similar action against any person or group of persons on any grounds
including those of race, color, religion, language, or national origin shall be
considered as offences punishable by law.”
Article 10 of the European Convention on Human Rights:
“1. Everyone has the right to freedom of expression. This right shall
include freedom to hold opinions and to receive and impart information
and ideas without interference by public authority and regardless of
frontiers. This article shall not prevent States from requiring the licensing
of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions
or penalties as are prescribed by law and are necessary in a democratic
society, in the interests of national security, territorial integrity or public
safety, for the prevention of disorder or crime, for the protection of health
or morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for
maintaining the authority and impartiality of the judiciary.”
The right to freedom of expression is also guaranteed by article 5(d)(viii) of
the International Convention on the Elimination of All Forms of Racial
Discrimination
and article 13 of the Convention on the Rights of the Child.
*****
As the substance of freedom of expression is intrinsically linked to limitations
on its exercise, these two issues will be dealt with jointly in the light of the
extensive
jurisprudence and legal comments of the international monitoring bodies.
Lawyers 547
3.2. Article 19 of the International Covenant on
Civil and Political Rights
The right “to hold opinions without interference” guaranteed by article 19(1)
“is a right to which the Covenant permits no exception or restriction”.94 This is
logical
since it is impossible to control what goes on in a person’s mind.
The right to freedom of expression, as guaranteed by article 19(2), is
multi-dimensional and wide-ranging, and includes “freedom to seek, receive and
impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing
or in
print, in the form of art, or through any other media of [one’s] choice”. In its
1983
General Comment on this article, the Human Rights Committee notes that it is
not
sufficient for States parties to claim in their periodic reports that freedom of
expression
is guaranteed by the Constitution; “in order to know the precise regime of
freedom of
expression in law and in practice, the Committee needs in addition pertinent
information about the rules which either define the scope of freedom of
expression or
which set forth certain restrictions, as well as any other conditions which in
practice
affect the exercise of this right.”95
The restrictions permitted by article 19(3) of the Covenant “shall only be such
as are provided by law and are necessary … for respect of the rights or
reputations of
others” or “for the protection of national security or of public order (ordre
public), or of
public health or morals”. In other words, to be lawful, restrictions on
freedom of
expression must comply with the principles of legality and
proportionality and
be imposed for one or more of the legitimate purposes enumerated in
article 19(3).
The Committee has further emphasized that the right to freedom of expression
“is of
paramount importance in any democratic society, and any restrictions to the
exercise
thereof must meet a strict test of justification”.96
Freedom of expression may, however, also be limited on the basis of article 20
of the Covenant, according to which “propaganda for war” and “any advocacy of
national, racial or religious hatred that constitutes incitement to discrimination,
hostility
or violence shall be prohibited by law.”
The scope of article 19 in various contexts will be further illustrated by a
selection of communications brought under the Optional Protocol and of
recommendations made by the Committee in connection with the consideration
of the
periodic reports of States parties.
Article 19(1) of the International Covenant on Civil and Political
Rights guarantees the right to hold opinions without interference. This
right may not be subjected to any exception or restriction.
94General Comment No. 10 (Article 19) of the Human Rights Committee, in UN doc. United Nations
95Ibid., p. 120, para. 3.
96Communication No. 628/1995, T. Hoon Park v. the Republic of Korea (Views adopted on 20 October 1998)
in UN doc. GAOR,
A/54/40 (vol. II), p. 91, para. 10.3.
As a point of departure, the right to freedom of expression in article
19(2) of the Covenant may be described as all-encompassing in that it
includes the right to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, whether in oral, written or printed form or
through any other media of one’s choice. Art is a form of expression
protected by article 19(2).
Freedom of expression may be limited only on the basis of articles 19(3)
and 20 of the Covenant.
3.2.1 Choice of language in court
In the case of Cadoret and Le Bihan v. France, the authors claimed that their
freedom of expression had been violated since they were not allowed to use the
Breton
language in French courts; the Committee observed that the fact that the
authors had
not been able to speak the language of their choice raised no issues under
article 19(2).
The complaint was therefore declared inadmissible.97 In Australia, the same
finding was
made with regard to the provision of sign language in court for deaf people.98 It
should
be recalled, however, that a person who does not understand the language used
in court
has the right to free assistance of an interpreter (see Chapter 7, subsection 3.9).
Freedom of information, as guaranteed by article 19 of the International
Covenant on Civil and Political Rights, does not include a right to speak
the language of one’s choice in court proceedings.
3.2.2 Advertising
In the case of Ballantyne, Davidson and McIntyre v. Canada, the authors, who
were
living in Quebec, complained of a violation of, inter alia, article 19 of the
Covenant
because they were “forbidden to use English for purposes of advertising, e.g. on
commercial signs outside the business premises, or in the name of the firm”.99
The
Human Rights Committee did not share the Canadian Government’s view that
commercial activities are not covered by article 19. It held that article 19(2)
“must be interpreted as encompassing every form of subjective ideas and
opinions capable of transmission to others, which are compatible with
article 20 of the Covenant, of news and information, of commercial
expression and advertising, or works of art, etc.; it should not be confined
to means of political, cultural or artistic expression. In the Committee’s
opinion, the commercial element in an expression taking the form of
outdoor advertising cannot have the effect of removing this expression
Lawyers 549
97Communications Nos. 221/1987 and 323/1988, Y. Cadoret and H. Le Bihan v. France (Views adopted on
11 April 1991) in
UN doc. GAOR, A/46/40, p. 224, para. 5.2.
98See Gradidge v. Grace Bros. Pty. Ltd. (1988), Federal Law Reports, vol. 92, p. 414.
99Communications Nos. 359/1989 and 385/1989, J. Ballantyne and E. Davidson, and G. McIntyre v. Canada
(Views adopted on
31 March 1993), in UN doc. GAOR, A/48/40 (vol. II), p. 91, para. 1.
from the scope of protected freedom. The Committee does not agree
either that any of the above forms of expression can be subjected to
varying degrees of limitation, with the result that some forms of expression
may suffer broader restrictions than others.”100
As the right to freedom of expression set forth in article 19(2) had thus been
limited, the Committee had to decide whether the restrictions could be justified
under
article 19(3) of the Covenant. While the relevant measures were “indeed
provided for
by law”, namely section 58 of the Charter of the French Language as amended
by
section 1 of Bill No. 178, the question arose whether they were necessary to
ensure
respect for the rights of others, namely “the rights of the francophone minority
within
Canada”. The Committee believed that it was “not necessary, in order to protect
the
vulnerable position in Canada of the francophone group, to prohibit commercial
advertising in English”, since such protection could be achieved in other ways
not
precluding “the freedom of expression, in a language of their choice, of those
engaged
in such fields as trade”. The law could, for instance, have required that
advertising be in
both French and English. The Committee added that “a State may choose one or
more
official languages, but it may not exclude, outside the spheres of public life, the
freedom
to express oneself in a language of one’s choice.”101 It followed that article 19(2)
had
been violated.102
Freedom of expression, as guaranteed by article 19(2) of the
International Covenant on Civil and Political Rights, is not limited to
means of political, cultural and artistic expression but covers every form of
subjective idea and opinion that is capable of transmission to others, such
as commercial advertising.
Outside the public sphere, individuals have the right to choose the
language in which they wish to express themselves. In public life,
however,
a State may choose one or more official languages.
3.2.3 Defamation and dissemination of false information
The Human Rights Committee observed that a provision in the Croatian
Penal Code allowing proceedings for slander could, in certain circumstances, lead
to
restrictions that go beyond those permissible under article 19(3). However, given
the
absence of specific information by the author in the case of D. Paraga v. Croatia
and the
dismissal of the charges against him, the Committee was unable to conclude
that the
institution of proceedings against the author, by itself, amounted to a violation of
article
19. The proceedings had been instituted because he had referred to the Croatian
President as a “dictator”.103
100Ibid., pp. 102-103, para. 11.3.
101Ibid., p. 103, para. 11.4.
102Ibid., loc. cit.
103Communication No. 727/1996, D. Paraga v. Croatia (Views adopted on 4 April 2001), in UN doc. GAOR,
A/56/40 (vol. II),
p. 66, para. 9.6.
When considering the initial report of Croatia, the Committee also pointed
out that, although the right to freedom of expression was constitutionally
guaranteed,
“the variety of provisions in the Criminal Code dealing with offences against
honour
and reputation, covering areas of defamation, slander, insult and so forth [were]
uncertain in their scope, particularly with respect to speech and expression
directed
against the authorities.” It therefore urged the State party to work towards
developing
“a comprehensive and balanced code in this area” setting out clearly and
precisely the
restrictions on freedom of speech and expression and ensuring that such
restrictions
did not exceed those permissible under article 19(3) of the Covenant.104 The
Committee also took note of the existence of the crime of disrespect of authority
(desacato), in the Dominican Republic, which it deemed contrary to article 19 of
the
Covenant. The State party was asked to take steps to abolish that crime.105
The Committee expressed concern in the case of Iraq about “severe
restrictions on the right to express opposition to or criticism of the Government
or its
policies” and about the fact that “the law imposes life imprisonment for insulting
the
President of the Republic, and in certain cases death.” The Committee also noted
that
the law “imposes severe punishments for vaguely defined crimes which are open
to
wide interpretations by the authorities, such as writings detrimental to the
President”.
In its view, “such restrictions on freedom of expression, which effectively prevent
the
discussion of ideas or the operation of political parties in opposition to the ruling
Ba’ath
party, constitute a violation of articles 6 and 19 of the Covenant and impede the
implementation of articles 21 and 22 of the Covenant, which protect the rights to
freedom of peaceful assembly and association.”. It observed that the penal laws
and
decrees imposing restrictions on the freedoms of expression, peaceful assembly
and
association should be amended so as to comply with the relevant provisions of
the
Covenant.106
The Committee expressed concern about a number of aspects of freedom of
expression in Slovakia such as article 98 of the Penal Code which makes it an
offence to
disseminate false information abroad which harms the interest of the State. In
the
Committee’s view, “this terminology ... is so broadly phrased as to lack any
certainty
and carries the risk of restricting freedom of expression beyond the limits
allowable
under [article 19(3)]”. The Committee also expressed concern about “lawsuits for
defamation resulting from expressing criticism of the Government” which posed
a
problem under article 19.107
States parties to the International Covenant on Civil and Political
Rights must ensure that laws on defamation and dissemination of false
information comply with the principle of legal certainty; in other words,
such laws must be sufficiently detailed to allow persons to adopt a form of
conduct that does not violate them.
Lawyers 551
105Ibid., p. 58, para. 22.
Legislative provisions which limit freedom of expression by, for instance,
generally penalizing “disrespect for authority” and criticism of governing
bodies and ruling parties, are not consistent with article 19 of the
Covenant.
The effective protection of freedom of expression is also indispensable for
implementation of the rights of freedom of peaceful assembly and
association set forth in articles 21 and 22 of the Covenant.
3.2.4 Denial of crimes against humanity and advocacy of hatred
The permissibility of denying crimes against humanity was raised in the case
of Faurisson v. France, which concerned the author’s conviction by French courts
on the
basis of the so-called “Gayssot Act”, which amended the 1881 Freedom of the
Press
Act to make it an offence “to contest the existence of the category of crimes
against
humanity as defined in the London Charter of 8 August 1945”. In an interview
the
author had “reiterated his personal conviction that there were no homicidal gas
chambers for the extermination of Jews in Nazi concentration camps”.108
This restriction on the author’s freedom of expression, as guaranteed by
article 19(2), had to be examined in the light of article 19(3), according to which,
as seen
above, any restriction must cumulatively meet the following three conditions: (1)
be
prescribed by law, (2) be imposed for one of the legitimate purposes enumerated
therein and (3) be necessary for one or more of those purposes. The Committee
accepted in the first place that the principle of legality had been respected in
that the
restriction was prescribed by the Gayssot Act, on the basis of which the author
was
convicted for “having violated the rights and reputation of others”.109 It next
agreed
that the restriction was imposed for a legitimate purpose, namely to ensure
respect for
the rights or reputation of others under article 19(3)(a) of the Covenant. It
pointed out
in this regard that “the rights for the protection of which restrictions on the
freedom of
expression are permitted [by article 19(3)] may relate to the interests of other
persons or
to those of the community as a whole.” As the statements made by the author,
“read in
their full context, were of a nature as to raise or strengthen anti-Semitic feelings,
the
restriction served the respect of the Jewish community to live free from fear of
an
atmosphere of anti-Semitism”.110
The final question to be decided was, however, whether the restriction was
necessary for this legitimate purpose. In the absence of any argument
undermining
the validity of the Government’s submission that “the Gayssot Act was intended
to
serve the struggle against racism and anti-Semitism” and the statement by a
former
Minister of Justice characterizing “the denial of the existence of the Holocaust as
the
principle vehicle for anti-Semitism”, the Committee was satisfied that the
restriction of
108Communication No. 550/1993, R. Faurisson v. France (Views adopted on 8 November 1996), in UN doc.
GAOR, A/52/40
(vol. II), p. 85, paras. 2.3 and 2.5.
109Ibid., pp. 95-96, para. 9.5.
110Ibid., p. 96, para. 9.6.
Mr. Faurisson’s freedom of expression was necessary within the meaning of
article
19(3) of the Covenant.111
In a case concerning the freedom of expression of teachers, the Ross v. Canada
case, the Committee likewise concluded that article 19 had not been violated.
The
question that had to be decided was whether the author’s right to freedom of
expression had been restricted contrary to article 19 of the Covenant by virtue of
the
decision of the Human Rights Board of Inquiry, upheld by the Supreme Court of
Canada, as a result of which the author was placed on leave without pay for a
week and
subsequently transferred to a non-teaching position.112 It appears from the
assessment
of the Board of Inquiry that statements made by the author in his various books
and
pamphlets, which were published outside the framework of his teaching
activities,
denigrated the faith and beliefs of Jews.113
Disagreeing with the State party, the Committee was of the view that “the loss
of a teaching position was a significant detriment, even if no or only insignificant
pecuniary damage was suffered” and the removal of the author from his
teaching
position was therefore a restriction of his freedom of expression that needed to
be
justified under article 19(3).114 The Committee then accepted that the measure
was
provided for by law, namely the New Brunswick Human Rights Act as
subsequently
interpreted by the Supreme Court. On the question whether it also pursued a
legitimate purpose, the Committee confirmed its Faurisson ruling that the
terms
“rights or reputation of others [in article 19(3)] may relate to other persons or to
a
community as a whole”. It added that:
“restrictions may be permitted on statements which are of a nature as to
raise or strengthen anti-Semitic feeling, in order to uphold the Jewish
communities’ right to be protected from religious hatred. Such restrictions
also derive support from the principles reflected in article 20(2) of the
Covenant. The Committee notes that both the Board of Inquiry and the
Supreme Court found that the author’s statements were discriminatory
against persons of the Jewish faith and ancestry and that they denigrated
the faith and beliefs of Jews and called upon true Christians to not merely
question the validity of Jewish beliefs and teachings but to hold those of
the Jewish faith and ancestry in contempt as undermining freedom,
democracy and Christian beliefs and values. In view of the findings as to
the nature and effect of the author’s public statements, the Committee
concludes that the restrictions imposed on him were for the purpose of
protecting the ‘rights and reputations’ of persons of Jewish faith, including
the right to have an education in the public school system free from bias,
prejudice and intolerance.”115
Lawyers 553
111Ibid., p. 96, para. 9.7.
112Communication No. 736/1997, M. Ross v. Canada (Views adopted on 18 October 2000), in UN doc.
GAOR, A/56/40
(vol. II), pp. 72-75, paras. 4.1-4.6, and p. 83, para. 11.1.
113Ibid., p. 73, para. 4.2.
114Ibid., p. 83, para. 11.1.
115Ibid., p. 84, paras. 11.3-11.5.
Lastly, with regard to the question of the necessity of the restriction, the
Committee stated that “the exercise of the right to freedom of expression carries
with it
special duties and responsibilities. These special duties and responsibilities are of
particular relevance within the school system, especially with regard to the
teaching of
young students.” The influence exerted by schoolteachers may thus “justify
restraints in
order to ensure that legitimacy is not given by the school system to the
expression of
views which are discriminatory”.116 The Committee took note of the fact
“that the Supreme Court found that it was reasonable to anticipate that
there was a casual link between the expressions of the author and the
‘poisoned school environment’ experienced by Jewish children in the
School district. In that context, the removal of the author from a teaching
position can be considered a restriction necessary to protect the right and
freedom of Jewish children to have a school system free from bias,
prejudice and intolerance.”117
The Committee noted, furthermore, that “the author was appointed to a
non-teaching position after only minimal period on leave without pay and that
the
restriction thus did not go any further than that which was necessary to achieve
its
protective functions.” It followed that there had been no violation of article 19.118
The exercise of freedom of expression carries with it special duties and
responsibilities.
The denial of crimes against humanity and incitement to discrimination
may in certain circumstances justify restrictions on the exercise of
freedom
of expression for the protection of the rights and freedoms of others. The
terms “rights or reputation of others” in article 19(3)(a) of the
International Covenant may in this regard relate either to other persons
or to a community as a whole.
It is particularly important for States parties to ensure that the public
education of young children is free from bias, prejudice and intolerance.
3.2.5 Threats to national security and public order
As will be shown by the cases cited in this subsection, it is not sufficient for a
State party simply to invoke one of the legitimate purposes enumerated in
article 19(3)
in order to justify restrictions on the exercise of freedom of expression. It must
also
show, by providing specific and reliable details, that in the case in point
the
restriction was indeed “prescribed by law” and necessary for a specific
legitimate
purpose.
116Ibid., p. 84, para. 11.6.
117Ibid., pp. 84-85, para. 11.6.
118Ibid., p. 85, para. 11.6.
The notion of national security was at the core of the K-T Kim v. the Republic of
Korea case, which concerned the author’s conviction under article 7(1) and (5) of
the
National Security Law of the Republic of Korea. The Criminal District Court of
Seoul
sentenced the author to three years’ imprisonment and one year of suspension
of
eligibility, a sentence that was reduced to two years’ imprisonment on appeal.
His crime
was that he had, together with other members of the National Coalition for
Democratic
Movement, prepared documents criticizing the Government and its foreign allies
and
appealing for national reunification.119 Article 7(1) and (5) of the National
Security Law
stipulate that “any person who assists an anti-State organization by praising or
encouraging the activities of this organization, shall be punished” and that “any
person
who produces or distributes documents, drawings or any other material(s) to the
benefit of an anti-State organization, shall be punished.”120
The Committee had thus to determine whether the author’s conviction, which
constituted a restriction of his freedom of expression, was justified under article
19(3)
of the Covenant. As it was prescribed by law, namely the National Security
Law, it had
to be decided whether it was necessary for one of the legitimate purposes
specified in
article 19(3). The Committee observed in this regard that there was a need for
“careful
scrutiny” because of “the broad and unspecific terms in which the offence under
the
National Security Law [was] formulated”.121
The Committee noted that the author had been convicted “for having read
out and distributed printed materials which were seen as coinciding with the
policy
statements of the DPRK (North Korea), with which country the State party was in
a
state of war”. The Supreme Court had held “that the mere knowledge that the
activity
could be of benefit to North Korea was sufficient to establish guilt”. Even so, the
Committee had to consider “whether the author’s political speech and his
distribution
of political documents were of a nature to attract the restriction allowed by
article 19(3)
namely the protection of national security”. It stated in this regard that:
“It is plain that North Korean policies were well known within the territory
of the State party and it is not clear how the (undefined) ‘benefit’ that might
arise for the DPRK from the publication of views similar to their own
created a risk to national security, nor is it clear what was the nature and
extent of any such risk. There is no indication that the courts, at any level,
addressed those questions or considered whether the contents of the
speech or the documents had any additional effect upon the audience or
readers such as to threaten public security, the protection of which would
justify restriction within the terms of the Covenant as being necessary.”122
As the State party had failed both to specify the precise nature of the threat
allegedly posed by the author’s exercise of freedom of expression and to provide
“specific justifications” as to why it was necessary for national security to
prosecute him
for the exercise of this freedom, the Committee concluded that the restriction
was not
Lawyers 555
119Communication No. 574/1994, K-T Kim v. the Republic of Korea (Views adopted on 3 November 1998), in
UN doc. GAOR,
A/54/40 (vol. II), p. 2, paras. 2.1-2.2.
120Ibid., p. 2, para. 2.3.
121Ibid., p. 9, para. 12.3.
122Ibid., p. 10, para. 12.4.
compatible with the requirements of article 19(3) of the Covenant. Article 19 had
therefore been violated.123
In the case of T. Hoon Park v. the Republic of Korea, the author complained of his
conviction under article 7(1) and (3) of the National Security Law, which was
“based on
his membership and participation in the activities of the Young Koreans United
(YKU), during his study at the University of Illinois” in the United States during
the
years 1983-1989. According to the author, this organization was American and
composed of young Koreans with the aim of discussing “issues of peace and
unification between North and South Korea”.124 It appeared from the court
judgments
“that the conviction and sentence were based on the fact that the author had, by
participating in certain peaceful demonstrations and other gatherings in the
United
States, expressed his support or sympathy to certain political slogans and
positions”.125
In examining this case under article 19(3) of the Covenant, the Committee
emphasized that
“the right to freedom of expression is of paramount importance in any
democratic society, and any restrictions to the exercise of this right must
meet a strict test of justification.”126
To justify the restriction on the exercise of the author’s freedom of
expression, the Government had maintained that it was necessary in order to
protect
“national security” but had in this regard only referred to “the general situation
in the
country and the threat posed by ‘North Korean communists’”. Again, the
Committee
considered that the State party had “failed to specify the precise nature of the
threat”
and it concluded that none of the arguments advanced by the State party
sufficed to
justify the restriction of the author’s freedom of expression under article 19(3) of
the
Covenant. Lastly, there was nothing in either the judicial decisions or the
submissions
of the State party to show that the author’s conviction was necessary for the
protection
of one of the legitimate purposes set forth in article 19. His conviction “for acts
of
expression” had therefore to be regarded as a violation of the article.127
In the case of V. Laptsevich v. Belarus, the author complained that his right to
freedom of expression and opinion had been violated by the sanctions imposed
on him
following the confiscation of a leaflet concerning the anniversary of the
proclamation
of independence of Belarus. He was fined 390,000 roubles under the Code of
Administrative Offences “for disseminating leaflets not bearing the required
publication data”. The author insisted, however, that the leaflets did contain the
data
concerned “precisely in order to make it clear that the Press Act did not apply to
his
publication”.128 Although it was “implied” in the submissions of the State party
“that
the sanctions were necessary to protect national security”, there was nothing in
the
123Ibid., p. 10, paras. 12.5.
124Communication No. 628/1995, T. Hoon Park v. the Republic of Korea (Views adopted on 20 October
1998, in UN doc. GAOR,
A/54/40 (vol. II), p. 86, para. 2.2.
125Ibid., p. 87, para. 2.4.
126Ibid., p. 91, para. 10.3.
127Ibid., loc. cit.
128Communication No. 780/1997, V. Laptsevich v. Belarus (Views adopted on 20 March 2000), in UN doc.
GAOR, A/55/40
(vol. II), pp. 178-180, paras. 2 and 4.
material before the Committee to suggest “that either the reactions of the police
or the
findings of the courts were based on anything other than the absence of
necessary
publication data”. Hence the sole issue to be decided by the Committee was
“whether
or not the sanctions imposed on the author for not including the details required
by the
Press Act [could] be deemed necessary for the protection of public order (ordre
public) or
for respect of the rights or reputation of others”.129
The Committee noted that the State party had made no attempt “to address
the author’s specific case and explain the reasons for the requirement that, prior
to
publishing and disseminating a leaflet with a print run of 200, he was to register
his
publication with the administrative authorities to obtain index and registration
numbers”. Furthermore, the State party had “failed to explain why this
requirement was
necessary for one of the legitimate purposes set out in [article 19(3)] and why
the breach
of the requirements necessitated not only pecuniary sanctions, but also the
confiscation
of the leaflets still in the author’s possession”.130 In the absence of any
explanation
justifying the registration requirement and the measures taken, the Committee
concluded that these could not be deemed necessary “for the protection of
public order
(ordre public) or for respect of the rights or reputations [sic] of others”. There
had
consequently been a violation of article 19(2) of the Covenant.131
According to the Human Rights Committee, freedom of expression is of
paramount importance in any democratic society and restrictions on the
exercise of this freedom must therefore meet a strict test of justification.
When invoking one or more of the legitimate purposes listed in article
19(3) of the International Covenant on Civil and Political Rights in
order to justify restrictions on the exercise of freedom of expression,
States
parties must consequently provide sufficient specific and reliable details to
substantiate their arguments. General references to notions such as
national security and public order (ordre public) are insufficient and will
not be accepted by the Human Rights Committee as a justification for
restrictions on the exercise of freedom of expression.
3.2.6 Freedom of the press
The case of R. Gauthier v. Canada concerned the publisher of National Capital
News in Canada, who, when applying for membership in the Parliamentary Press
Gallery, was only provided with a temporary pass which granted him limited
privileges,
a fact that he considered to be a violation of article 19 of the Covenant.132 The
State
party had actually “restricted the right to enjoy the publicly funded media
facilities of
Parliament, including the right to take notes when observing meetings of
Parliament, to
those media representatives who [were] members of a private organization, the
Lawyers 557
129Ibid., p. 181, para. 8.4.
130Ibid., pp. 181-182, para. 8.
131Ibid., p. 182, para. 8.
132Communication No. 633/1995, R. Gauthier v. Canada (Views adopted on 7 April 1999), in UN doc, GAOR,
A/54/40 (vol. II),
pp. 93-94, paras. 1-2.2.
Canadian Press Gallery”. The author had been denied full membership of the
Press
Gallery and had only occasionally held temporary membership which gave him
access
to some but not all facilities of the organisation. When he did not have temporary
membership, he was denied access to the media facilities and could not take
notes of
Parliamentary proceedings.133 The Committee thus had to decide whether the
author’s
restricted access to the parliamentary press facilities amounted to a violation of
his right
under article 19 “to seek, receive and impart information”. In this connection it
referred
in the first place
“to the right to take part in the conduct of public affairs, as laid down in
article 25 of the Covenant, and in particular to General Comment No. 25
(57) which reads in part: ‘In order to ensure the full enjoyment of rights
protected by article 25, the free communication of information and ideas
about public and political issues between citizens, candidates and elected
representatives is essential. This implies a free press and other media able
to comment on public issues without censorship or restraint and to inform
public opinion.’ ... Read together with article 19, this implies that citizens,
in particular through the media, should have wide access to information
and the opportunity to disseminate information and opinions about the
activities of elected bodies and their members. The Committee recognizes,
however, that such access should not interfere with or obstruct the
carrying out of the functions of elected bodies, and that a State party is thus
entitled to limit access. However, any restrictions imposed by the State
party must be compatible with the provisions of the Covenant.”134
The Committee next accepted that the author’s exclusion constituted a
restriction of his right under article 19(2) to have access to information, and it
thereby
also rejected the State party’s argument that “the author [did] not suffer any
significant
disadvantage because of technological advances which make information about
Parliamentary proceedings readily available to the public”.135
After accepting that the restriction was “arguably, imposed by law” in that it
followed from the law of parliamentary privilege, the Committee also agreed
“that the
protection of Parliamentary procedure can be seen as a legitimate goal of public
order”
and that “an accreditation system can thus be a justified means of achieving this
goal”.
On the other hand, the Committee did not agree with the Government’s
suggestion
that this was “a matter exclusively for the State to determine” and it adopted
the
following Views on the issue:
“The relevant criteria for the accreditation scheme should be specific, fair
and reasonable, and their application should be transparent. In the instant
case, the State party has allowed a private organization to control access to
the Parliamentary press facilities, without intervention. The scheme does
not ensure that there will be no arbitrary exclusion from access to the
Parliamentary media facilities. In the circumstances, the Committee is of
the opinion that the accreditation system has not been shown to be a
necessary and proportionate restriction of rights within the meaning of
133Ibid., p. 104, para. 13.5.
134Ibid., p. 104, paras. 13.3-13.4; footnote omitted.
135Ibid., pp. 104-105, para. 13.5.
article 19, paragraph 3, of the Covenant, in order to ensure the effective
operation of Parliament and the safety of its members. The denial of access
to the author to the press facilities of Parliament for not being amember of
the Canadian Press Gallery Association constitutes therefore a violation of
Article 19(2) of the Covenant.”136
*****
The Committee noted “with regret” with regard to Gabon “that the powers
vested in the National Council of Communication to monitor programmes and
impose
penalties on organs of the press are an obstacle to the exercise of freedom of
the press”.
The Committee also deplored “the harassment of journalists” and invited the
State
party “to bring its legislation into line with article 19 by doing away with
censorship and
penalties against organs of the press and ensuring that journalists may safely
exercise
their functions”.137 The Committee also expressed concern at the “growing
number of
complaints of systematic harassment and death threats against journalists
intended to
undermine freedom of expression” in Peru and requested the State party “to
take the
necessary measures to put an end to direct and indirect restrictions on freedom
of
expression, to investigate all complaints which have been filed and to bring the
persons
responsible to justice”.138 It also deplored “the methods used by Peru to take
control of
communications media away from persons critical of the Government, including
stripping one of them of his nationality” and requested the State party “to
eliminate
these situations, which affect freedom of expression ... and to make effective
remedies
available to those concerned”.139
The Committee expressed concern about various provisions of the Press Law
in the Democratic People’s Republic of Korea and their frequent invocation,
which was
difficult to reconcile with the provisions of article 19 of the Covenant. It was in
particular concerned “that the notion of ‘threat to the State security’ may be
used in
such ways as to restrict freedom of expression”, that the permanent presence in
the
country of foreign media representatives was confined to journalists from three
countries, and that foreign newspapers and publications were “not readily
available to
the public at large”. Lastly, the Committee observed that “DPRK journalists may
not
travel abroad freely”. It followed that the State party “should specify the reasons
that
have led to the prohibition of certain publications, and to refrain from measures
that
restrict the availability of foreign newspapers to the public”. The State party was
further
requested “to relax restrictions on the travel abroad by DPRK journalists, and to
avoid
any use of the notion of ‘threat to the State security’ that would repress freedom
of
expression contrary to article 19".140
The Committee emphasized “its deep concern about the numerous and
serious infringements of the right to freedom of expression” in Belarus. “In
particular,
the fact that most publishing, distribution and broadcasting facilities are State
owned,
and that editors-in-chief of State-supported newspapers are State employees,
Lawyers 559
136Ibid., p. 104, para. 13.5 at p. 105 and p. 105, para. 13.6.
138Ibid., pp. 47-48, para. 16.
139Ibid., p. 48, para. 17.
140Ibid., p. 103, para. 23.
effectively exposes the media to strong political pressure and undermines its
independence.” The many restrictions imposed on the media, in particular the
vaguely
defined offences, were incompatible with article 19(3). Furthermore, the
Committee
expressed concern “about reports of harassment and intimidation of local and
foreign
journalists by authorities and the denial of access to public broadcasting facilities
by
political opponents to the Government”. It urged the State party “to take all
necessary
measures, legislative as well as administrative, in order to remove these
restrictions on
freedom of expression, which are incompatible with its obligations under article
19 ... as
a matter of priority”.141
The Committee expressed concern that the mass media in Zimbabwe, “as
well as many other forms of expression, including artistic expression, are subject
to
censorship and are largely controlled by the Government”. It recommended that
the
relevant law “be brought into strict compliance with article 19(3) of the
Covenant”.142
Lastly, it was concerned about interference by the Government of Slovakia “in
the
direction of its State-owned television”, which “carries a danger of violating
article
19”.143
The right to freedom of expression, including freedom of the press, as
guaranteed by article 19 of the International Covenant on Civil and
Political Rights, may have to be interpreted also in the light of other
provisions of the Covenant, such as article 25 concerning the right to take
part in the conduct of public affairs. The effective exercise of that right
presupposes the free flow of information and ideas between citizens on
public and political issues, including a free press and other media which
are able to comment on public issues without censorship or restraint.
The right of journalists to have access to information in accordance
with article 19(2) of the Covenant implies, inter alia, that criteria for
accreditation schemes must be specific, fair and reasonable, and that, for
instance, there must be no arbitrary exclusion from access to
parliamentary debates.
The right to freedom of the press means that harassment of journalists is
strictly prohibited under article 19 of the Covenant. Freedom of the press
presupposes that journalists must be able to exercise their functions
safely
and to travel freely.
Censorship and penalties against organs of the press constitute obstacles
to the effective exercise of freedom of the press. Article 19(3) does not
allow the use of vaguely defined offences for the imposition of restrictions
on the mass media in order to silence criticism of the government.
142Ibid., p. 37, para. 224.
3.2.7 Human rights defenders
The right to freedom of expression of human rights defenders is essential
because if they are not allowed to express themselves freely, both orally and in
written
or printed form, the very notion of effective human rights protection becomes
illusory.
When considering the second periodic report of the Syrian Arab Republic, the
Committee stated that it remained concerned “that the activities of human rights
defenders and of journalists who speak out for human rights remain subject to
severe
restrictions”. Referring to a specific case where a person was sentenced to 10
years’
imprisonment “for his non-violent expression of opinions critical of the
authorities”,
the Committee observed that “such restrictions are incompatible with freedom of
expression and opinion” as guaranteed by article 19. The State party should
therefore
“protect human rights defenders and journalists against any restriction on their
activities and ensure that journalists can exercise their profession without fear of
being
brought before the courts and prosecuted for having criticized government
policy”.144
It is noteworthy in this context that the United Nations Declaration on the
Right and Responsibility of Individuals, Groups and Organs of Society to Promote
and
Protect Universally Recognized Human Rights and Fundamental Freedoms,
adopted
by General Assembly resolution 53/144 of 9 December 1998, is specially
designed to
protect human rights defenders and guarantees to every person the right,
among others
(1) “to communicate with non-governmental or intergovernmental
organizations”; (2)
“to know, seek, obtain, receive and hold information about all human rights and
fundamental freedoms”; and (3) “as provided for in human rights and other
applicable
international instruments, [the right] freely to publish, impart or disseminate to
others
views, information and knowledge on all human rights and fundamental
freedoms”
(arts. 5 and 6).
The right to freedom of expression must be effectively guaranteed to all
those who defend human rights and fundamental freedoms although their
activities may imply criticism of government policies. The exercise of their
freedom of expression must be restricted on no grounds other than those
contained in the applicable international treaties.
3.3 Article 9 of the African Charter on Human and
Peoples’ Rights
Article 9 of the African Charter on Human and Peoples’ Rights guarantees to
every individual “the right to receive information” as well as “the right to express
and
disseminate his opinions within the law”. It is noteworthy that the terms “within
the
law” are not conditioned by any other criteria such as an enumeration of
legitimate
purposes or the concept of necessity.
Lawyers 561
144UN doc. GAOR A/56/40 (vol. I), p. 75, para. 23.
The case of Media Rights Agenda v. Nigeria concerned the trial and conviction of
Mr.Malaolu, the editor of an independent Nigerian newspaper; Mr.Maloulu was
found
guilty by a Special Military Tribunal of the charge of concealment of treason and
sentenced to life imprisonment. It was alleged before the African Commission on
Human and Peoples’ Rights that article 9 of the Charter had been violated, since
Mr.
Malaolu had simply been punished for news stories published in his newspaper
relating
to an alleged coup d’état involving certain people. The Government argued, on
the
other hand, that Mr. Malaolu had been tried with a number of other people,
including
journalists, accused of involvement in the coup and that it was not, therefore, a
case of
victimization of the profession of journalist.145 The Commission took the view,
however, that it was only Mr. Malaolu’s publication that had led to his arrest, trial
and
conviction and concluded that article 9 had been violated.146
Freedom of the press was again at issue in the case of the Constitutional Rights
Project and Civil Liberties Organisation v. Nigeria which concerned, inter alia, the
seizure of
thousands of copies of magazines following protests by journalists and others
against
the annulment of elections. The News magazine was closed by a military Decree
in June
1993. Prior to the closure, copies of the magazine had been seized by security
agents
and some of its editors were sought by the police. Thousands of copies of the
weekly
news magazine Tempo had likewise allegedly been confiscated. The Government
justified these actions by referring to the “chaotic” situation reigning in the
country
after the elections were annulled.147 The Commission disagreed, and recalled the
general principle according to which States should not limit the exercise of rights
by
overriding constitutional provisions or undermine fundamental rights guaranteed
by
the constitution and international human rights standards. In its view,
Governments
“should avoid restricting rights, and take special care with regard to those rights
protected by constitutional or international human rights law. No situation
justifies the
wholesale violation of human rights. In fact, general restrictions on rights
diminish
public confidence in the rule of law and are often counterproductive.”148 The
Commission concluded that, given that Nigeria had all the traditional provisions
for
libel suits available to deal with violations of domestic law, the Government
proscription of a specific publication was of particular concern; “laws made to
apply to
specifically one individual or legal entity [raised] the acute danger of
discrimination and
lack of equal treatment before the law as guaranteed by Article 2” of the
Charter. The
proscription of The News and the seizure of 50,000 copies of Tempo and The
News
therefore violated article 9 of the Charter.149
145ACHPR, Media Rights Agenda (on behalf of Mr. N. Malaolu) v. Nigeria, No. 224/98, decision adopted
during the 28th session, 23 October –
6 November 2000, paras. 67-68 of the text as published at:
http://www1.umn.edu/humanrts/africa/comcases/224-98.html
146Ibid., para. 69.
147AHCPR, Constitutional Rights Project and Civil Liberties Organisation v. Nigeria, Communication No.
31 October 1998, paras. 6, 7 and 57 of the text as published at the following web site:
148Ibid., paras. 57-58.
149Ibid., para. 59.
The African Commission considers, however, that “payment of a registration
fee and a pre-registration deposit for payment of penalty or damages is not in
itself
contrary to the right to the freedom of expression.” “However, the amount of the
registration fee should not be more than necessary to ensure administrative
expenses of
the registration, and the pre-registration fee should not exceed the amount
necessary to
secure against penalties or damages against the owner, printer or publisher of
the
newspaper. Excessively high fees are essentially a restriction on the publication
of news
media.” In the case before the Commission, on the other hand, the fees
concerned were
high but “not so clearly excessive” as to constitute a “serious restriction”.150
The Commission was, however, more concerned about “the total discretion
and finality of the decision of the registration board, which effectively gives the
government the power to prohibit publication of any newspapers or magazines
they
choose. This invites censorship and seriously endangers the rights of the public
to
receive information” protected by article 9(1) of the Charter. There had thus
been a
breach of that article.151
With regard to the proscription of a newspaper in the same case, the
Commission recalled that, according to article 9(2) of the African Charter, “every
individual shall have the right to ... disseminate his opinions within the law”. In
its view,
“this does not mean that national law can set aside the right to express and
disseminate
one’s opinions; this would make the protection of the right to express one’s
opinions
ineffective.” Moreover, “international human rights standards must always
prevail over
contradictory national law. Any limitation on the rights of the Charter must be in
conformity with the provisions of the Charter.”152 Furthermore, as the Charter
does
not contain a derogation clause, “limitations on the rights and freedoms
enshrined in
the Charter cannot be justified by emergencies or special circumstances.”153
Indeed, “the only legitimate reasons for limitations to the rights and freedoms
of the African Charter are found in Article 27.2”, according to which “the rights
and
freedoms shall be exercised with due regard to the rights of others, collective
security,
morality and common interest.” “The reasons for possible limitations must be
founded
in a legitimate state interest and the evils of limitations of rights must be strictly
proportionate with and absolutely necessary for the advantages which are to be
obtained.” In particular, “a limitation may never have as a consequence that the
right
itself becomes illusory.”154
Considering that, in this case, the Government had provided no evidence that
the proscription of the newspaper The News could be justified on the grounds
enumerated in article 27(2), and given the availability of libel laws in Nigeria, the
Lawyers 563
31 October 1998, paras. 55-56 of the text of the decision as published at:
http://www1.umn.edu/humanrts/africa/comcases/ The
registration fee was N100,000 and the deposit for any penalty or damages awarded against the newspaper
etc. amounted to N250,000,
para. 6.
151Ibid., para. 57.
153Ibid., para. 67.
154Ibid., paras. 68-70.
proscription of a particular publication was “disproportionate and uncalled for”
and
constituted a violation of article 9(2) of the Charter.155
3.3.2 Freedom to express opinions
Where persons have been detained simply for belonging to opposition parties
or trade unions, the African Commission has concluded that such “blanket
restrictions” on the right to freedom of expression violate article 9(2) of the
Charter. In
this connection, the Commission recalled the principle that, if necessary to
restrict
human rights, such restrictions “should be as minimal as possible” and should
not
“undermine fundamental rights guaranteed under international law”.156 Similarly,
where an alleged leader of a student union in Kenya was arrested and detained
for
several months because of his views and ultimately had to leave his country, the
Commission considered the treatment to be a violation of article 9 of the
Charter. If a
person’s views are contrary to domestic law, the affected individual or
Government
should rather seek redress in a court of law.157 Lastly, in the case brought on
behalf of
the writer Ken Saro-Wiwa Jr. and the Civil Liberties Organisation, the Commission
emphasized the close relationship between the freedoms of expression,
association and
assembly guaranteed by articles 9 to 11 of the Charter and concluded that the
Government had implicitly violated article 9(2) when violating articles 10(1) and
11. It
had been alleged that the reason for the trial of the victims and ultimate death
sentences
against them was the peaceful expression of their views. During a rally, the
victims had
in fact been disseminating, through the organization Movement for the Survival
of the
Ogoni Peoples, information and opinions on the rights of the people living in an
oil-producing part of the country. The Commission noted that the allegations had
not
been contradicted by the Government.158
3.3.3 Human rights defenders
The case of Huri-Laws v. Nigeria concerned the harassment and persecution of
members of a human rights organization in Nigeria. According to the
complainant, the
Civil Liberties Organisation was a human rights organization whose employees
worked
together to secure respect for human rights through organized programmes
aimed at
informing people of their rights. The Commission concluded that “the
persecution of
its employees and raids of its offices in an attempt to undermine its ability to
function in
this regard” amounted to a violation of both the right to freedom of expression
and the
right to freedom of association as guaranteed by articles 9 and 10 of the
Charter.159
155Ibid., para. 71. It is unclear how this communication relates to Communication No.102/92 (see foot note
155 et seq.), since
they both deal partly with the proscription of the same newspaper.
156Amnesty International and Others v. Sudan, Communications Nos. 48/90, 50/91, 52/91 and 89/93,
decision adopted on unknown date,
para. 77-80 of the text of the decision as published at the following web site:
http://www1.umn.edu/humanrts/africa/comcases/
157John D. Ouko v. Kenya, Communication No. 232/99, decision adopted during the 28th Ordinary session,
23 October – 6 November 2000,
paras. 27-28 of the text of the decision as published at:
158International Pen and Others (on behalf of Ken Saro-Wiwa Jr and Civil Liberties Organisation) v. Nigeria,
Communications Nos. 137/94,
139/94, 154/96 and 161/97, decision adopted on 31 October 1998, para. 110 of the text of the decision as
published at the following web
site: http://www1.umn.edu/humanrts/africa/comcases/
159Huri-Laws (on behalf of Civil Liberties Organisation) v. Nigeria, Communication No. 225/98, decision
adopted during the 28th Ordinary session,
23 October – 6 November 2000, para. 47 of the text of the decision as published at:
The right to freedom of expression, as guaranteed by article 9 of the
African Charter on Human and Peoples’ Rights, also protects freedom of
the press.
The payment of a reasonable fee for the registration of a newspaper is
not,
however, contrary to article 9, unless excessive. On the other hand, the
registration of newspapers may not be used as a way of endangering the
right of the public to receive information, as guaranteed by article 9(1) of
the Charter. It is for Governments to prove that the limitations imposed
on the exercise of a right can be justified under article 27(2) of the
Charter.
Domestic law cannot nullify the right to freedom of expression and the
right to disseminate one’s opinions because international human rights
standards prevail over national law.
Under the African Charter, limitations on the exercise of rights must
never drain the rights of their substance and can only be imposed for the
legitimate reasons described in article 27(2) of the Charter. Limitations
must also be strictly proportionate to the legitimate advantage that they
are aimed at securing.
The freedom to express one’s opinion implies the right to do so peacefully
in public, without fear of arrest, prosecution and harassment.
Under the African Charter, human rights defenders have a right to
freedom of expression in working for an improved understanding of
peoples’ rights and freedoms.
3.4 Article 13 of the American Convention on
Human Rights
The definition of the right to freedom of expression in article 13(1) of the
American Convention on Human Rights is very similar to that in article 19(2) of
the
International Covenant although it also includes a reference to “freedom of
thought”.
The right thus includes “freedom to seek, receive, and impart information and
ideas of
all kinds, regardless of frontiers, either orally, in writing, in print, in the form of
art, or
through any other medium of one’s choice”.
The limitation provision in article 13(2) of the American Convention is
particularly important in that it states, expressis verbis, that the exercise of the
right
provided for in article 13(1), “shall not be subject to prior censorship but shall be
subject to subsequent imposition of liability, which shall be expressly established
by law
to the extent necessary to ensure: (a) respect for the rights and reputation of
others; or
(b) the protection of national security, public order, or public health or morals”.
The
grounds that may justify limitations on the exercise of freedom of expression are
thus
identical to those found in article 19(3) of the International Covenant. An
exception to
the prohibition on prior censorship is contained in article 13(4) inasmuch as
“public
entertainments may be subject by law to prior censorship for the sole purpose of
regulating access to them for the moral protection of childhood and
adolescence”.
Lawyers 565
According to the Inter-American Court, apart from the said exception
provided for in article 13(4), “prior censorship is always incompatible with
the full
enjoyment of the rights listed in Article13 ... even if the alleged
purpose of such
prior censorship is to prevent abuses of freedom of expression”. It
follows that, “in
this area any preventive measure inevitably amounts to an infringement of the
freedom
guaranteed by the Convention.”160 A case in point is that of Olmedo Bustos et Al.
v. Chile
concerning the prohibition by Chilean courts of the exhibition of the film The Last
Temptation of Christ. The Inter-American Court concluded that this case of prior
censorship constituted a violation of the right to freedom of thought and
expression as
embodied in article 13 of the American Convention on Human Rights.161
While abuses of the right to freedom of expression can thus be controlled only
“through the subsequent imposition of sanctions on those who are guilty of the
abuses”, the imposition of such liability must, according to the Court, comply
with all
of the following requirements in order to be valid:
_ “the existence of previously established grounds for liability”;
_ “the express and precise definition of these grounds by law”;
_ “the legitimacy of the ends sought to be achieved”; and
_ “a showing that these grounds of liability are ‘necessary to ensure’ the
aforementioned ends”.162
Article 13(3) further specifically outlaws restrictions on freedom of
expression “by indirect methods or means, such as the abuse of government or
private
controls over newsprint” or various kinds of mass media “tending to impede the
communication and circulation of ideas and opinions”. This provision thus
prohibits
not only indirect governmental restrictions but also “private controls” over the
mass
media which produce the same result. This means that not only can a violation of
the
Convention occur when the State itself imposes restrictions of an indirect
character
which tend to impede “the communication and circulation of ideas and opinions”
but
that “the State also has an obligation to ensure that the violation does not result
from
the ‘private controls’” referred to in article 13(3).163
Article 13(5) of the American Convention allows restrictions similar to those
in article 20 of the International Covenant in that propaganda for war and
advocacy of
hatred “shall be considered as offenses punishable by law”.
*****
Lastly, a distinctive characteristic of the American Convention on Human
Rights is that the right of reply is guaranteed by article 14, the first paragraph of
which
states that:
(arts. 13 and 29 American
Convention on Human Rights), Advisory Opinion OC-5/85 of November 13, 1985, Series A, No. 5, pp. 103-
161See I-A Court HR, The Case of Olmedo Bustos et Al. v. Chile, judgment of 5 February 2001, Series C, No.
73, paras. 71-73
para. 39.
163Ibid., pp. 110-111, para. 48.
“Anyone injured by inaccurate or offensive statements or ideas
disseminated to the public in general by a legally regulated medium of
communication has the right to reply or to make a correction using the
same communications outlet, under such conditions as the law may
establish.”
Furthermore, “the correction or reply shall not in any case remit other legal
liabilities that may have been incurred” (article 14(2)). Lastly, “for the effective
protection of honor and reputation, every publisher, and every newspaper,
motion
picture, radio, and television company, shall have a person responsible who is
not
protected by immunities or special privileges” (article 14(3)). For an
interpretation of
article 14 in relation to articles 1 and 2 of the Convention, see the advisory
opinion of
the Inter-American Court of Human Rights on the “Enforceability of the Right to
Reply or Correction”.164
The exercise of freedom of expression under article 13 of the American
Convention on Human Rights must not be subjected to prior censorship.
Abuses of the exercise of freedom of expression can only be lawfully
controlled through the a posteriori imposition of sanctions on those who
are guilty of abuses.
In order to be lawful, however, the imposition of such subsequent liability
must comply with the following requirements:
_ the existence of previously established grounds for liability;
_ the express and precise definition of these grounds by law;
_ the legitimacy of the ends sought to be achieved; and
_ a showing that these grounds of liability are necessary to ensure the
legitimate ends.
Article 14 of the American Convention on Human Rights guarantees
the right of reply to anyone injured by inaccurate or offensive statements
or
ideas disseminated to the public.
3.4.1 The individual and collective dimensions of freedom of
expression, including the role of the mass media
Basing itself on its advisory opinion in the case concerning Compulsory
Membership in an Association Prescribed by Law for the Practice of Journalism
(hereinafter
referred to as the “Compulsory Membership” case), the Inter-American Court of
Human
Rights confirmed in the case of Ivcher Bronstein v. Peru that persons protected
by article
13 of the American Convention on Human Rights “have not only the right and
freedom to express their own thoughts, but also the right and freedom to seek,
receive
and disseminate information and ideas of all types. Consequently, freedom of
expression has both an individual and a social dimension”, which requires
that
Lawyers 567
164I-A Court HR, Enforceability of the Right to Reply or Correction (arts. 14(1), 1(1) and 2 American
Convention on Human Rights), Advisory
Opinion OC-7/86 of August 29, 1986, Series A, No. 7; for the text see the Court’s web site:
www.corteidh.or.cr/seriecing/A_7_ING.html.
“on the one hand, no one may be arbitrarily harmed or impeded from
expressing his own thought and therefore represents a right of each
individual; but it also implies, on the other hand, a collective right to
receive any information and to know the expression of the thought of
others.”165
With regard to the first dimension of the right contained in article 13, namely
the individual right, the Court stated that
“freedom of expression is not exhausted in the theoretical recognition of
the right to speak or write, but also includes, inseparably, the right to use
any appropriate method to disseminate thought and allow it to reach the
greatest number of persons. In this respect, the expression and
dissemination of thought and information are indivisible, so that the
restriction of the possibilities of dissemination represents directly, and to
the same extent, a limit to the right to free expression.”166
With regard to the second element of the right embodied in article 13, namely
the social element, the Court stated that
“freedom of expression is a medium for the exchange of ideas and
information between persons; it includes the right to try and communicate
one’s points of view to others, but it implies also everyone’s right to know
opinions, reports and news. For the ordinary citizen, the right to know
about other opinions and the information that others have is as important
as the right to impart their own.”167
In the Court’s opinion, these two dimensions “are of equal importance and
should be guaranteed simultaneously in order to give total effect to the right to
freedom
of expression in the terms of Article 13 of the Convention”. The importance of
this
right is further underlined if one examines
“the role that the media plays in a democratic society, when it is a true
instrument of freedom of expression and not a way of restricting it;
consequently, it is vital that it can gather the most diverse information and
opinions.”168
Furthermore, “it is essential that the journalists who work in the media should
enjoy the necessary protection and independence to exercise their functions
comprehensively, because it is they who keep society informed, and this is an
indispensable requirement to enable society to enjoy full freedom.”169
165I-A Court HR, Ivcher Bronstein Case v. Peru, judgment of February 6, 2001, Series C, No. 74; the text
used is that found on the Court’s
web site: www.corteidh.or.cr/seriecing/C_74_ENG.html, para. 146; emphasis added. The Compulsory
Membership case will be further
reviewed infra in subsection 3.4.5.
In its advisory opinion in the Compulsory Membership case, the Court stated
moreover that the fact that the individual and collective dimensions of freedom
of
expression must be guaranteed simultaneously means, on the one hand, that
“one
cannot legitimately rely on the right of a society to be honestly informed in order
to put
in place a regime of prior censorship for the alleged purpose of eliminating
information
deemed to be untrue in the eyes of the censor” and, on the other hand, “that the
right to
impart information and ideas cannot be invoked to justify the establishment of
private
or public monopolies of the communications media designed to mold public
opinion
by giving expression to only one point of view”.170
It followed that, since “it is the mass media that make the exercise of freedom
of expression a reality ... the conditions of its use must conform to the
requirements of
this freedom, with the result that there must be, inter alia, a plurality of means
of
communication, the barring of all monopolies thereof, in whatever form, and
guarantees for the protection of the freedom and independence of
journalists.”171
The right to freedom of expression in article 13 of the American
Convention on Human Rights includes not only the right to express one’s
own thoughts but also the right and freedom to seek, receive and
disseminate information and ideas of all types and by whatever method
one considers appropriate.
This also means that freedom of expression has both an individual
and a social dimension that must be guaranteed simultaneously: on
the one hand, no individual may be arbitrarily prevented from expressing
his or her own thoughts; on the other hand, there is a collective right to
receive information from others and thoughts and opinions expressed by
them.
The interrelationship between the individual and social dimensions of
freedom of expression implies, furthermore, that limitations on the
possibility to disseminate information will restrict freedom of expression to
the same extent.
In a democratic society the media are a true instrument of freedom of
expression and, for a society to be free, journalists must be able to
exercise
their professional responsibilities independently and in safe conditions.
The right to impart information cannot be invoked to justify prior
censorship and the establishment of monopolies within the media.
Lawyers 569
102, para. 33.
171Ibid., p. 102, para. 34.
3.4.2 Freedom of expression and the concept of public order in a
democratic society
According to the understanding of the Inter-American Court, which follows
logically from its reasoning as set forth in the preceding subsection,
“The concept of public order in a democratic society requires the
guarantee of the widest possible circulation of news, ideas and opinions, as
well as the widest access to information by society as a whole. Freedom of
expression constitutes the primary and basic element of the public order of
a democratic society, which is not conceivable without free debate and the
possibility that dissenting voices be fully heard.”172
In support of this opinion the Court referred to the jurisprudence of the
European Court of Human Rights, according to which freedom of expression is
“one
of the essential pillars” of a democratic society and “a fundamental condition for
its
progress and the personal development of each individual”. As noted by the
Inter-American Court, its European counterpart has also ruled that “this freedom
should not only be guaranteed with regard to the dissemination of information
and
ideas that are received favourably or considered inoffensive or indifferent, but
also with
regard to those that offend, are unwelcome or shock the State or any sector of
the
population.” The European Court has further held that these principles are “of
particular importance when applied to the press”.173
In the Compulsory Membership case, the Court expressed the role of freedom of
expression in the following terms:
“[It] is a cornerstone upon which the very existence of a democratic society
rests. It is indispensable for the formation of public opinion. It is also a
conditio sine qua non for the development of political parties, trade
unions, scientific and cultural societies and, in general, those who wish to
influence the public. It represents, in short, the means that enable the
community, when exercising its options, to be sufficiently informed.
Consequently, it can be said that a society that is not well informed is not a
society that is truly free.”174
Freedom of expression is the basic element of the public order of a
democratic society; it presupposes both the widest possible
circulation of news, ideas and opinions and the widest possible access to
information by society as a whole.
172I-A Court HR, Ivcher Bronstein Case v. Peru, judgment of February 6, 2001, Series C, No. 74, para. 151.
173Ibid., paras. 152-153.
para. 70.
The hallmark of the concept of public order in a democratic society is free
debate, that is to say a debate in which dissenting opinions can be fully
heard and views can therefore be disseminated although they may shock,
offend or disturb.
A society that is not well informed is not truly free.
3.4.3 Restrictions on freedom of expression:
Meaning of the term “necessary to ensure”
It is recalled that, according to article 13(2) of the American Convention, one
of the conditions that States must comply with in order to impose valid
restrictions on
the exercise of freedom of expression is that the restrictions must be “necessary
to
ensure” one or more of the legitimate aims mentioned in the article. The
question
therefore arises: What is meant by the term “necessary to ensure” in this
context?
The Inter-American Court on Human Rights stated in the Compulsory
Membership case that article 29 of the American Convention, which concerns
restrictions on interpretation, article 32, which deals with relationships between
duties
and rights, and the Preamble to the Convention define the context within which
the
restrictions permitted under Article 13(2) must be interpreted:
“It follows from the repeated reference to ‘democratic institutions,’
‘representative democracy’ and ‘democratic society’ that the question
whether a restriction on freedom of expression imposed by a state is
‘necessary to ensure’ one of the objectives listed in subparagraphs (a) or (b)
must be judged by reference to the legitimate needs of democratic societies
and institutions.”175
In its view, the “just demands of democracy” must, in particular, guide the
interpretation of those provisions of the Convention “that bear a critical
relationship to
the preservation and functioning of democratic institutions”.176
Having thus established the interpretative role played by the notion of a
democratic society in the interpretation of article 13(2) of the Convention, the
Court
went on to analyse the term “necessary”. In doing so, it referred to the case law
of the
European Court of Human Rights, according to which the term “necessary” in
article 10 of the European Convention, while not being synonymous with
“indispensable”, implies the existence of a “pressing social need”and that for a
restriction to be “necessary” it is not enough to show that it is “useful”,
“reasonable” or
“desirable”. In the opinion of the American Court,
Lawyers 571
para. 42. Article 29(c) states that
“No provision of this Convention shall be interpreted as: ... precluding other rights or guarantees that are
inherent in the human
personality or derived from representative democracy as a form of government.” According to article 32(2),
“The rights of each
person are limited by the rights of others, by the security of all, and by the just demands of the general
welfare, in a democratic
society.”
176Ibid., p. 108, para. 44.
“This conclusion, which is equally applicable to the American Convention,
suggests that the ‘necessity’ and, hence, the legality of restrictions imposed
under Article 13(2) on freedom of expression, depend upon a showing that
the restrictions are required by a compelling governmental interest. Hence
if there are various options to achieve this objective, that which least
restricts the right protected must be selected. Given this standard, it is not
enough to demonstrate, for example, that a law performs a useful or
desirable purpose; to be compatible with the Convention, the restrictions
must be justified by reference to governmental objectives which, because
of their importance, clearly outweigh the social need for the full enjoyment
of the right Article 13 guarantees. Implicit in this standard, furthermore, is
the notion that the restriction, even if justified by compelling interests,
must be so framed as not to limit the right protected by Article 13 more
than is necessary. That is, the restriction must be proportionate and closely
tailored to the accomplishment of the legitimate governmental objective
necessitating it.”177
The term “necessary to ensure” means that a restriction imposed on the
exercise of freedom of expression must be interpreted in the light of the
just or legitimate demands of a democratic society. The restrictions must
be justified by a compelling governmental interest, which clearly
outweighs
society’s interest in full enjoyment of freedom of expression. Restrictions
are not “necessary” if only shown to be useful or desirable.
The term “necessary” therefore also means that a restriction must be
proportionate to the legitimate compelling objective that necessitates it
and
that States must select the least invasive restriction needed to achieve
that
objective.
3.4.4 Indirect control of the mass media: The case of
Ivcher Bronstein v. Peru
Issues relating to freedom of expression have seldom been raised before the
Inter-American Court. However, article 13(1) and (3) was found to have been
violated
by Peru in the Ivcher Bronstein case.
Mr. Ivcher was the majority shareholder in the company that operated Peru’s
television Channel 2 and was moreover authorized, as director and chairman of
the
Board of the company, to take editorial decisions on programming. In April 1997,
in its
programme called Contrapunto, Channel 2 aired investigative reports of national
interest,
such as reports on possible torture committed by members of the Army
Intelligence
Service, the alleged assassination of a named agent and the extremely large
income
allegedly obtained by an advisor to the Peruvian Intelligence Service.178 Evidence
showed that Channel 2 had an extensive audience throughout the country in
1997 and
that, as a consequence of its editorial line, Mr. Ivcher was the object of
threatening
action of various kinds. A Peruvian national of Israeli origin, he was eventually
deprived
177Ibid., p. 109, para. 46.
178I-A Court HR, Ivcher Bronstein Case v. Peru, judgment of February 6, 2001, Series C, No. 74, para. 156.
of his Peruvian citizenship, following which a judge ordered the suspension of the
exercise of his rights as majority shareholder and president of the company. His
appointment as director was also revoked and a new Board was appointed.179
The
Court also established that, after the minority shareholders took over the
administration of the company, “the journalists who had been working for
Contrapunto
were prohibited from entering the Channel and the program’s editorial line was
modified.”180
The Inter-American Court concluded that the annulment of Mr. Ivcher’s
nationality “constituted an indirect means of restricting his freedom of
expression, as
well as that of the journalists who worked and conducted investigations for
Contrapunto.
... By separating Mr. Ivcher from the control of Channel 2 and excluding the
Contrapunto
journalists, the State not only restricted their right to circulate news, ideas and
opinions,
but also affected the right of all Peruvians to receive information, thus limiting
their
freedom to exercise political options and develop fully in a democratic society.”
Peru
had therefore violated article 13 (1) and (3) of the Convention.181
Indirect measures to control the mass media for the purpose of impeding
the communication and circulation of ideas and opinions of public interest
are contrary to article 13(1) and (3) of the American Convention.
Prohibited measures may thus involve indirect governmental or private
controls over the mass media and a variety of other actions including
harassment of journalists and owners of newspapers and radio and
television stations.
3.4.5 Article 13(2) and the Compulsory Licensing of Journalists
case
In its advisory opinion in the Compulsory Licensing of Journalists case, the Court
examined the compatibility with article 13(2) of the American Convention of a
scheme
of compulsory licensing of journalists in Costa Rica. It was clear that this scheme
could
result in non-members of the Colegio de Periodistas incurring liability, including
criminal liability, if they engaged in the professional practice of journalism. The
requirement therefore constituted a restriction on freedom of expression for
those who
were not members of the Colegio.182 The Court had to examine whether this
restriction
could be justified on any of the grounds enumerated in article 13(2) of the
Convention.
It observed “that the organization of professions in general, by means of
professional ‘colegios,’ is not per se contrary to the Convention, but that it is a
method
for regulation and control to ensure that they act in good faith and in accordance
with
the ethical demands of the profession”. If the notion of public order contained in
article
Lawyers 573
179Ibid., paras. 158-160.
115, para. 58.
13(2)(b) “is thought of ... as the conditions that ensure the normal and
harmonious
functioning of the institutions on the basis of a coherent system of values and
principles, it is possible to conclude that the organization of the practice of
professions
is included in that order”.183
However, the Court also noted, in particular, that the same concept of public
order in a democratic society requires “the guarantee of the widest possible
circulation
of news, ideas and opinions as well as the widest access to information by
society as a
whole”, and that “freedom of expression is a cornerstone upon which the very
existence of a democratic society rests.”184 In the Court’s view, “journalism is the
primary and principal manifestation of freedom of expression of thought. For that
reason, because it is linked with freedom of expression, which is an inherent
right of
each individual, journalism cannot be equated to a profession that is merely
granting a
service to the public through the application of some knowledge or training
acquired in
a university or through those who are enrolled in a certain professional
‘colegio’”, such
as those created for lawyers and medical doctors.185 The Court therefore
concluded
“that reasons of public order that may be valid to justify compulsory
licensing of other professions cannot be invoked in the case of journalism
because they would have the effect of permanently depriving those who
are not members of the right to make full use of the rights that Article 13 of
the Convention grants to each individual. Hence, it would violate the basic
principles of a democratic public order on which the Convention itself is
based.”186
The Court nonetheless recognized the need “for the establishment of a code
that would assure the professional responsibility and ethics of journalists and
impose
penalties for infringements of such a code” and it also believed “that it may be
entirely
proper for a State to delegate, by law, authority to impose sanctions for
infringements
of the code of professional responsibility and ethics”. However, when dealing
with
journalists the restrictions contained in article 13(2) “must be taken into
account”.187 It
followed “that a law licensing journalists, which does not allow those who are not
members of the ‘colegio’ to practice journalism and limits access to the ‘colegio’
to
university graduates who have specialized in certain fields, is not compatible
with the
Convention.” Such a law would contain restrictions to freedom of expression that
are
not authorized by article 13(2) and would thus violate “not only the right of each
individual to seek and impart information and ideas through any means of his
choice,
but also the right of the public at large to receive information without any
interference”.188 The Court consequently decided by unanimity that “the
compulsory
licensing of journalists is incompatible with Article 13 of the American
Convention ... if
it denies any person access to the full use of the news media as a means of
expressing
opinions or imparting information”, and that the Organic Law of the Association
of
Journalists of Costa Rica, was “incompatible” with article 13 “in that it
[prevented]
183Ibid., p. 122, para. 68.
184Ibid., pp. 122-123, paras. 69-70.
185Ibid., pp. 123-124, paras. 71-73.
186Ibid., pp. 125-126, para. 76.
187Ibid., pp. 127-128, para. 80.
188Ibid., p. 128, para. 81.
certain persons from joining the Association of Journalists and, consequently
[denied]
them the full use of the mass media as a means of expressing themselves or
imparting
information”.189
The organization of professions, such as those of lawyers and medical
doctors, is not per se contrary to article 19 of the American Convention
on Human Rights, given that such associations provide a means of
ensuring that their members act in good faith and in accordance with the
ethical demands of the profession.
On the other hand, as journalism is the primary and principle
manifestation of freedom of expression in a democratic society, it would
violate the principles of a democratic public order on which the American
Convention is based to require them to belong to a specific organization if
such compulsory membership denied them full access to the news media
in
order to express their views and transmit information.
3.5 Article 10 of the European Convention on
Human Rights
Article 10 of the European Convention on Human Rights has been
interpreted in numerous cases. Only a few will be examined in this section in
order to
illustrate some key aspects of the substantive content of freedom of expression
at the
European level.
According to article 10, “everyone has the right to freedom of expression.
This right shall include freedom to hold opinions and to receive and impart
information
and ideas without interference by public authority and regardless of frontiers.”
However, the article does not prevent States “from requiring the licensing of
broadcasting, television or cinema enterprises”.
As the exercise of these freedoms “carries with it duties and responsibilities”,
article 10(2) provides a list of legitimate grounds for imposing “such formalities,
conditions, restrictions or penalties as are prescribed by law and are necessary
in a
democratic society”. These grounds are:
_ “the interests of national security, territorial integrity or public safety”;
_ “the prevention of disorder or crime”;
_ “the protection of health or morals”;
_ “the protection of the reputation or rights of others”;
_ “for preventing the disclosure of information received in confidence”; and
_ “for maintaining the authority and impartiality of the judiciary”.
Lawyers 575
189Ibid., pp. 131-132, para. 85.
To be valid under article 10(2), the “formalities, conditions, restrictions or
penalties” must cumulatively comply with the principle of legality, the
condition of
legitimate purpose and the principle of necessity in a democratic
society.
It is noteworthy that, contrary to article 13 of the American Convention on
Human Rights, article 10 of the European Convention “does not in terms prohibit
the
imposition of prior restraints on publication, as such”. As noted by the European
Court
of Human Rights, this is evidenced “not only by the words ‘conditions’,
‘restrictions’,
‘preventing’ and ‘prevention’ which appear in that provision” but also by its own
case
law. However,
“the dangers inherent in prior restraints are such that they call for the most
careful scrutiny on the part of the Court. This is especially so as far as the
press is concerned, for news is a perishable commodity and to delay its
publication, even for a short period, may well deprive it of all its value and
interest.”190
Contrary to article 13 of the American Convention on Human Rights,
article 10 of the European Convention on Human Rights does not
expressly prohibit prior restraints on publication. However, in view of the
inherent danger of such restraints, they must be subjected to the most
careful scrutiny by the European Court of Human Rights.
To be lawful, any formalities, conditions, restrictions or penalties imposed
by the Contracting States on freedom of expression under article 10 of the
European Convention must cumulatively comply with the principle of
legality, the condition of legitimate purpose and the principle of necessity
in a democratic society.
3.5.1 Basic interpretative approach to freedom of expression
Before analysing the case law relating to article 10 of the Convention, it may
be useful to highlight the basic interpretative approach adopted by the European
Court
of Human Rights when considering issues relating to freedom of expression. Its
approach is conditioned by the role of freedom of expression in a democratic
society,
the Contracting States’ margin of appreciation and the Court’s own supervisory
role.
This basic interpretative approach has been consistently applied by the Court in
its
voluminous jurisprudence.191
The role of freedom of expression in a democratic society: The European
Court has emphasized from the outset the important role played by freedom of
expression in a democratic society. Thus, in the early Handyside case it ruled:
190Eur. Court HR, Case of the Observer and Guardian v. the United Kingdom, judgment of 26 November
1991, Series A, No. 216, p. 30,
para. 60.
191Further examples of cases involving article 10 of the European Convention on Human Rights may be
found by using the
search engine on the Court’s web site (http://hudoc.coe.int).
“The Court’s supervisory functions oblige it to pay the utmost attention to
the principles characterising a ‘democratic society’. Freedom of expression
constitutes one of the essential foundations of such a society, one of the
basic conditions for its progress and for the development of every man.
Subject to paragraph 2 of Article 10, it is applicable not only to
‘information’ or ‘ideas’ that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those that offend,
shock or disturb the State or any sector of the population. Such are the
demands of that pluralism, tolerance and broadmindedness without which
there is no ‘democratic society’. This means, amongst other things, that
every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this
sphere must be proportionate to the legitimate aim pursued.”192
In the Sunday Times case the Court affirmed that:
“These principles are of particular importance as far as the press is
concerned. They are equally applicable to the field of the administration of
justice, which serves the interests of the community at large and requires
the co-operation of an enlightened public. There is general recognition of
the fact that the courts cannot operate in a vacuum. Whilst they are the
forum for the settlement of disputes, this does not mean that there can be
no prior discussion of disputes elsewhere, be it in specialised journals, in
the general press or amongst the public at large. Furthermore, whilst the
mass media must not overstep the bounds imposed in the interests of the
proper administration of justice, it is incumbent on them to impart
information and ideas concerning matters that come before the courts just
as in other areas of public interest. Not only do the media have the task of
imparting such information and ideas: the public also has a right to receive
them.”193
In the later Observer and Guardian case, the Court added that “were it
otherwise,
the press would be unable to play its vital role of ‘public watchdog’.”194
States’ margin of appreciation v. European supervision: With regard to
the interpretation of the limitation provision in article 10(2) of the Convention,
the
Court has stated that the exceptions contained therein:
“must be narrowly interpreted and the necessity of any restrictions must be
convincingly established.”195
Lawyers 577
192Eur. Court HR, Handyside Case v. the United Kingdom, judgment of 7 December 1976, Series A, No. 24,
p. 23, para. 49. This case
concerned the applicant’s criminal conviction and the seizure and subsequent forfeiture and destruction of
the matrix and of
hundreds of copies of the Little Red Schoolbook for the purpose of protecting morals in a democratic
society. This book was
primarily aimed at children in the 12-18 age group and included a section on sex. The Court concluded that
article 10 had not been
violated by the measures taken in this case. See p. 28, para. 59.
193Eur. Court HR, the Sunday Times Case v. the United Kingdom, judgment of 26 April 1979, Series A, No.
30, p. 40, para. 65.
1991, Series A, No. 216, p. 30,
para. 59(b).
195Ibid., p. 30, para. 59(a).
While “the adjective ‘necessary’ within the meaning of Article 10 § 2, implies
the existence of a ‘pressing social need’,”196
“[it] is not synonymous with ‘indispensable’ (cf., in Articles 2 § 2 and 6 § 1,
the words ‘absolutely necessary’ and ‘strictly necessary’ and, in Article
15 § 1, the phrase ‘to the extent strictly required by the exigencies of the
situation’), neither has it the flexibility of such expressions as ‘admissible’,
‘ordinary’ (cf. Article 4 § 3), ‘useful’ (cf. the French text of the first
paragraph of Article 1 of Protocol No. 1), ‘reasonable’ (cf. Articles 5 § 3
and 6 § 1) or ‘desirable’. Nevertheless, it is for the national authorities to
make the initial assessment of the reality of the pressing social need implied
by the notion of ‘necessity’ in this context.
Consequently, Article 10 § 2 leaves to the Contracting States a margin of
appreciation. This margin is given both to the domestic legislator
(‘prescribed by law’) and to the bodies, judicial amongst others, that are
called upon to interpret and apply the laws in force.”197
Yet article 10(2) “does not give the Contracting States un unlimited power of
appreciation. The Court ... is empowered to give the final ruling on whether a
‘restriction’ or ‘penalty’ is reconcilable with freedom of expression as protected
by
Article 10. The domestic margin of appreciation thus goes hand in hand with a
European supervision. Such supervision concerns both the aim of the measure
challenged and its ‘necessity’; it covers not only the basic legislation but also the
decision applying it, even one given by an independent court.”198
Moreover, the Court’s supervision is not limited to “ascertaining whether a
respondent State exercised its discretion reasonably, carefully and in good faith.
Even a
Contracting State so acting remains subject to the Court’s control as regards the
compatibility of its conduct with the engagements undertaken under the
Convention.”199
In short, for the limitation on the exercise of freedom of expression to be
“convincingly established”, the European Court must be satisfied that the
impugned
measures were “proportionate to the legitimate aim pursued” and that the
reasons
adduced by the national authorities to justify them were “relevant and
sufficient”.200
Lastly, it should be observed in this context that the Contracting States’
margin of appreciation is not identical with respect to each of the aims listed in
article
10(2). As will be seen in the next subsection, the more objective the legitimate
aim, the
less power of appreciation is granted to States.201
196Ibid., p. 30, para. 59(c).
197Eur. Court HR, Handyside Case v. the United Kingdom, judgment of 7 December 1976, Series A, No. 24,
p. 22, para. 48.
198Ibid., p. 23, para. 49.
30, p. 36, para. 59.
1991, Series A, No. 216, p. 30,
paras. 59(a) and (b).
30, pp. 36-37, para. 59.
Freedom of expression as guaranteed by article 10 of the European
Convention on Human Rights constitutes one of the essential foundations
of a democratic society.
Freedom of expression is also one of the basic conditions for the progress
of a democratic society and for the development of every individual.
The hallmarks of a democratic society include pluralism, tolerance and
broadmindedness, which means that, subject to the restrictions defined in
article 10(2) of the European Convention, the right to freedom of
expression covers not only information and ideas that are considered
acceptable or otherwise inoffensive but also information and ideas that
offend, shock or disturb the State or any part of its population.
These principles are of particular importance to the press, which plays the
role of a public watchdog by imparting information and ideas. They are
also important to the general public, which has the right to receive such
information and ideas.
The term “necessary in a democratic society” in article 10(2) of the
European Convention means that there must be “a pressing social need”
for limitations imposed on the exercise of freedom of expression. It must,
in other words, be “convincingly established” that the measures
concerned
are proportionate to the legitimate aim pursued. To this end, the
Contracting States have to show that the reasons adduced in support of
the measures are both “relevant” and “sufficient”. It is not enough in
order to fulfil this requirement that the Contracting States show that they
have acted carefully or in good faith.
Although domestic authorities have a certain margin of appreciation in
deciding the necessity of a measure, this power is coupled with
supervision
by the European Court of Human Rights.
States’ power of appreciation is not identical in each situation but changes
with the legitimate aim to be pursued. The more objective the legitimate
purpose, the less power of appreciation is granted to States in deciding on
the necessity of the restrictive measures.
Freedom of the press has been the subject of many cases under article 10,
cases that prove not only the frailty but also the fundamental importance of a
free and
critical press in Europe. In this subsection examples will be given of cases
involving
restrictions on freedom of the press in order to maintain the authority of the
judiciary
and to protect the reputation or rights of others.
Maintenance of the authority of the judiciary: The Sunday Times case
concerned a court injunction preventing the newspaper from publishing an
article on
the thalidomide tragedy on the ground that it would constitute contempt of
court. The
article concerned thalidomide children and the settlement of their compensation
claims
Lawyers 579
in the United Kingdom. Thalidomide was a drug prescribed, in particular, for
expectant
mothers, some of whom subsequently gave birth to children suffering from
severe
deformities. Distillers Company (Biochemicals) Limited, which manufactured and
marketed the drug in the United Kingdom, eventually entered into settlements
with a
great majority of the victims of the drug. The applicants alleged, inter alia, that
the
injunction issued by the High Court and upheld by the House of Lords constituted
a
breach of article 10 of the Convention.202
The European Court had no difficulty deciding that there had been in this case
“interference by public authority” in the exercise of the applicants’ freedom of
expression as guaranteed by article 10(1) of the Convention. To be justified, such
interference had to meet the conditions laid down in article 10(2).203
With regard to the condition that the interference must be “prescribed by
law”, the Court first noted that the term “law” in article 10(2) “covers not only
statute
but also unwritten law”.204 Furthermore, the expression “prescribed by law”
requires
that “the law must be adequately accessible” and “formulated with sufficient
precision
to enable the citizen to regulate his conduct”.205 After carefully examining
whether the
law of contempt of court in English law satisfied these criteria of “accessibility”
and
“foreseeability”, the European Court concluded that it did and that the
interference
complained of was “prescribed by law” as required by article 10(2).206
The foreseeability criterion means that a person “must be able – if need be
with appropriate advice – to foresee, to a degree that is reasonable in the
circumstances,
the consequences which a given action may entail. Those consequences need
not be
foreseeable with absolute certainty: experience shows this to be
unattainable.”207 As
applied in the Sunday Times case, the foreseeability principle rather means that
a person
must be able to foresee, to a degree that is “reasonable in the circumstances”,
the risk
that a certain conduct entails.208
The next question to be decided was whether the interference had a
legitimate aim in conformity with article 10(2). Both the applicants and the
Government agreed that the law of contempt of court served the purpose of
“safeguarding not only the impartiality and authority of the judiciary but also the
rights
and interests of litigants”.209 Explaining the term “judiciary” (French: “pouvoir
judiciaire”), the Court stated that it comprises
“the machinery of justice or the judicial branch of government as well as
the judges in their official capacity. The phrase ‘authority of the judiciary’
includes, in particular, the notion that the courts are, and are accepted by
the public at large as being, the proper forum for the ascertainment of legal
rights and obligations and the settlement of disputes relative thereto;
30, p. 27, para. 38.
203Ibid., p. 29, para. 45.
204Ibid., p. 30, para. 47.
205Ibid., p. 31, para. 49.
206Ibid., pp. 31-33, paras. 50-53.
207Ibid., p. 31, para. 49.
208Ibid., p. 33, para. 52.
209Ibid., p. 33, para. 54.
further, that the public at large have respect for and confidence in the
courts’ capacity to fulfil that function.”210
Having examined the domestic law at issue, the Court took the view that “the
majority of the categories of conduct covered by the law of contempt relate
either to the
position of the judges or to the functioning of the courts and of the machinery of
justice: ‘maintaining the authority and impartiality of the judiciary’ is therefore
one
purpose of that law ... [I]nsofar as the law of contempt may serve to protect the
rights of
litigants, this purpose is already included in the phrase ‘maintaining the authority
and
impartiality of the judiciary’”. It was therefore not necessary to consider as a
separate
issue whether the law of contempt had the further purpose of safeguarding the
rights of
others.211 As the question of “impartiality” had not been pleaded before the
European
Court, the Court only had to consider whether the reasons invoked by the House
of
Lords for concluding that the draft article was objectionable fell “within the aim
of
maintaining the ‘authority ... of the judiciary’ as interpreted by the Court”. The
Court
concluded that they did and accepted, inter alia, the following reasons given by
the
House of Lords:
_ “by ‘prejudging’ the issue of negligence [the article] would have led to
disrespect for
the processes of the law or interfered with the administration of justice;”
_ “prejudgment by the press would have led inevitably in this case to replies by
the
parties, thereby creating the danger of a ‘trial by newspaper’ incompatible with
the
proper administration of justice;” and
_ “the courts owe it to the parties to protect them from the prejudices of
prejudgment
which involves their having to participate in the flurries of pre-trial publicity.”212
As the interference in this case complied both with the principle of legality
and the condition of a legitimate purpose, the crucial question that
remained to be
answered was whether it could be considered to be “necessary in a
democratic
society”. In other words,
_ Did the interference correspond to a “pressing social need”?
_ Was it “proportionate to the legitimate aim pursued”?
_ Were the reasons given by the domestic authorities to justify it “relevant” and
“sufficient”?213
The Court noted in this regard that a Contracting State’s “power of
appreciation is not identical as regards each of the aims listed in Article 10 (2)”.
In
contrast to the “protection of morals”, for instance, the “authority” of the
judiciary is a
“far more objective notion” concerning which “the domestic law and practice of
the
Contracting States reveal a fairly substantial measure of common ground ...
Accordingly, here a more extensive European supervision corresponds to a less
discretionary power of appreciation” at the domestic level.214
Lawyers 581
210Ibid., p. 34, para. 55.
211Ibid., p. 34, paras. 55-56.
212Ibid., pp. 34-35, paras. 56-57.
213Ibid., p. 38, para. 62.
214Ibid., pp. 36-37, para. 59.
In its detailed reasoning, the Court recalled, inter alia, the principles relating to
the importance of freedom of expression in a democratic society, which are
“equally
applicable to the field of the administration of justice”. The exceptions to this
freedom
contained in article 10(2) “must be narrowly interpreted”.215 The Court then
pointed
out that article 10 “guarantees not only the freedom of the press to inform the
public
but also the right of the public to be properly informed ... In the present case, the
families of numerous victims of the tragedy, who were unaware of the legal
difficulties
involved, had a vital interest in knowing all the underlying facts and the various
possible
solutions. They could be deprived of this information which was crucially
important for
them, only if it appeared absolutely certain that its diffusion would have
presented a
threat to the ‘authority of the judiciary’”.216 The Court therefore had to “weigh
the
interests involved and assess their respective force”. In so doing, it observed,
inter alia,
that the facts of the case “did not cease to be a matter of public interest merely
because
they formed the background to pending litigation. By bringing to light certain
facts, the
article might have served as a break on speculative and unenlightened
discussion.”217 It
concluded that “the interference complained of did not correspond to a social
need
sufficiently pressing to outweigh the public interest in freedom of expression
within the
meaning of the Convention”. The Court therefore found the reasons for the
restraint
imposed on the applicants not to be sufficient under Article 10 (2). That restraint
proved not to be proportionate to the legitimate aim pursued; it was not
necessary in a
democratic society for maintaining the authority of the judiciary.218 There had,
consequently, been a violation of article 10.
Protection of the reputation or rights of others: The case of Lingens v.
Austria concerned the applicant’s conviction for having defamed Mr. Kreisky, the
then
Chancellor of Austria. In a couple of articles the applicant had, inter alia,
criticized Mr.
Kreisky’s accommodating attitude towards former Nazis taking part in Austrian
politics, using terms such as “the basest opportunism”, “immoral” and
“undignified”
on the basis of which he was sentenced to a fine and his articles were ordered
confiscated.219
The European Court of Human Rights accepted that there had been
“interference by public authority” with the exercise of Mr. Lingens’s freedom of
expression that needed to be justified under article 10(2) in order not to
constitute a
violation of the Convention, that the conviction was “prescribed by law” since it
was
based on article 111 of the Austrian Criminal Law, and that the measure pursued
a
legitimate aim in that it was designed to protect “the reputation or rights of
others”.220
The question that remained to be decided was therefore whether the conviction
could
be justified as being “necessary in a democratic society” in pursuance of the
legitimate aim.
215Ibid., pp. 40-41, para. 65.
216Ibid., pp. 41-42, para. 66.
217Ibid., p. 42, para. 66.
218Ibid., p. 42, para. 67.
219Eur. Court HR, Case of Lingens v. Austria, judgment of 8 July 1986, Seris A, No. 103, pp. 21-23, paras. 26-
30.
220Ibid., p. 24, paras. 35-36.
Recalling its Handyside and Sunday Times rulings, the Court emphasized that it
could not accept the opinion, expressed in the judgment of the Vienna Court of
Appeal, “to the effect that the task of the press was to impart information, the
interpretation of which had to be left primarily to the reader”.221 It added that:
“Freedom of the press furthermore affords the public one of the best
means of discovering and forming an opinion of the ideas and attitudes of
political leaders. More generally, freedom of political debate is at the very
core of the concept of a democratic society with prevails throughout the
Convention.
The limits of acceptable criticism are accordingly wider as regards a
politician as such than as regards a private individual. Unlike the latter, the
former inevitably and knowingly lays himself open to close scrutiny of his
every word and deed by both journalists and the public at large, and he
must consequently display a greater degree of tolerance. No doubt Article
10 § 2 enables the reputation of others – that is to say, of all individuals – to
be protected, and this protection extends to politicians too, even when
they are not acting in their private capacity; but in such cases the
requirements of such protection have to be weighed in relation to the
interests of open discussion of political issues.”222
As to the particular facts of Mr. Lingens’s case, the European Court observed
that his articles “dealt with political issues of public interest in Austria which had
given
rise to many heated discussions concerning the attitude of Austrians in general –
and
the Chancellor in particular – to National Socialism and to the participation of
former
Nazis in the governance of the country. The content and tone of the articles were
on
the whole fairly balanced but the use of the aforementioned expressions in
particular
appeared likely to harm Mr. Kreisky’s reputation. However, since the case
concerned
Mr. Kreisky in his capacity as a politician, regard must be had to the background
against
which these articles were written.” They had appeared after the general election
in 1975,
when Mr. Kreisky had accused Mr. Wiesenthal, the President of the Jewish
Documentation Centre, of using “mafia methods” after he had made a number of
revelations concerning the past of the President of the Austrian Liberal Party, Mr.
Kreisky’s likely coalition partner. “The impugned expressions [were] therefore to
be
seen against the background of a post-election political controversy; ... in this
struggle
each used the weapons at his disposal.” Furthermore, these were circumstances
that
“must not be overlooked” when assessing, under article 10(2) of the European
Convention, “the penalty imposed on the applicant and the reasons for which the
domestic courts imposed it”.223
The European Court noted in this regard that, although the disputed articles
had been “widely disseminated” so that the confiscation order imposed on the
applicant “did not strictly speaking prevent him from expressing himself, it
nonetheless
amounted to a kind of censure, which would be likely to discourage him from
making
criticisms of that kind again in future.” It added that:
Lawyers 583
221Ibid., p. 26, para. 41.
222Ibid., p. 26, para. 42.
223Ibid., pp. 26-27, para. 43.
“In the context of political debate such a sentence would be likely to deter
journalists from contributing to public discussion of issues affecting the
life of the community. By the same token, a sanction such as this is liable to
hamper the press in performing its task as purveyor of information and
public watchdog.”224
The Court then observed “that the facts on which Mr. Lingens founded his
value judgment were undisputed, as was also his good faith”. It was impossible,
in the
Court’s view, to prove the truth of value-judgments as required by article 111 of
the
Austrian Criminal Code in order to escape conviction. Moreover, such a
requirement
“infringes freedom of opinion itself, which is a fundamental part of the right
secured by
Article 10 of the Convention”.225 The Court therefore concluded that the
interference
with Mr. Lingens’s freedom of expression was not “necessary in a democratic
society”
in that it was “disproportionate to the legitimate aim pursued”.226
In the case of Jersild v. Denmark, the applicant was convicted of aiding and
abetting three youths – members of a group called the “Greenjackets” – who
were
themselves convicted of making insulting or degrading remarks against persons
of
foreign origin. The remarks had been made in a television programme produced
by the
applicant for the stated purpose of providing “a realistic picture of a social
problem”.
He was sentenced to pay day-fines of 1,000 Danish kroner or, alternatively, to
five days’
imprisonment.227
It was common ground in this case that the conviction constituted an
interference with Mr. Jersild’s freedom of expression, that it was “prescribed by
law”,
namely, articles 266(b) and 23(1) of the Danish Penal Code, and that it pursued
the
legitimate aim of protecting “the reputation or rights of others”.228
The only point in dispute was whether the measures complained of were
“necessary in a democratic society”. The Court emphasized at the outset
that it was
“particularly conscious of the vital importance of combating racial discrimination
in all
its forms and manifestations” and that, consequently, “the object and purpose”
of the
United Nations International Convention on the Elimination of All Forms of Racial
Discrimination were
“of great weight in determining whether the applicant’s conviction, which
– as the Government ... stressed – was based on a provision enacted in
order to ensure Denmark’s compliance with the UN Convention, was
‘necessary’ within the meaning of Article 10 § 2”.229
Denmark’s obligations under article 10 of the European Convention must
therefore “be interpreted, to the extent possible, so as to be reconcilable with its
obligations under the UN Convention”.230
224Ibid., p. 27, para. 44.
225Ibid., p. 28, para. 46.
226Ibid., p. 28, para. 47.
227Eur. Court HR, Case of Jersild v. Denmark, judgment of 23 September 1994, Series A, No. 298, p. 14-15,
paras. 13-14..
228Ibid., p. 20, para. 27.
229Ibid., p. 22, para. 30.
230Ibid., pp. 22-23, para. 30.
Reiterating the importance of freedom of expression and the role of the press
in a democratic society, the Court emphasized that these principles “doubtless
apply
also to the audiovisual media”. It added that:
“In considering the ‘duties and responsibilities’ of a journalist, the potential
impact of the medium concerned is an important factor and it is commonly
acknowledged that the audiovisual media have often a much more
immediate and powerful effect than the print media ... The audiovisual
media have means of conveying through images meanings which the print
media are not able to impart.
At the same time, the methods of objective and balanced reporting may vary
considerably, depending among other things on the media in question. It is
not for the Court, nor for the national courts for that matter, to substitute
their own views for those of the press as to what technique of reporting
should be adopted by journalists. In this context, the Court recalls that
Article 10 protects not only the substance of the ideas and information
expressed, but also the form in which they are conveyed.”231.
The Court thus had to decide whether the reasons adduced by the Danish
authorities to justify the conviction of Mr. Jersild were “relevant and sufficient
and
whether the means employed were proportionate to the legitimate aim
pursued”. In so
doing, “the Court [had] to satisfy itself that the national authorities did apply
standards
which were in conformity with the principles embodied in Article 10 and,
moreover,
that they based themselves on an acceptable assessment of the relevant
facts.”232
The Court’s assessment had regard to “the manner in which the Greenjackets
feature was prepared, its contents, the context in which it was broadcast and the
purpose of the programme”. It also bore in mind “the obligations on States under
the
UN Convention and other international instruments to take effective measures to
eliminate all forms of racial discrimination and to prevent and combat racist
doctrines
and practices”.233
In so doing, the Court found, in the first place, that the reasons advanced by
the national authorities were “relevant”. In its view, “the national courts laid
considerable emphasis on the fact that the applicant had himself taken the
initiative of
preparing the Greenjackets feature and that he not only knew in advance that
racist
statements were likely to be made during the interview but also had encouraged
such
statements. He had edited the programme in such a way as to include the
offensive
assertions. Without his involvement, the remarks would not have been
disseminated to
a wide circle of people and would thus not have been punishable.”234
On the other hand, considering the programme in its context, including the
presenter’s introduction, there was “no reason to doubt” that the interviews
fulfilled
the stated aim of addressing aspects of the problem of racism in Denmark.
“Taken as a
whole, the feature could not objectively have appeared to have as its purpose
the
propagation of racist views and ideas” because
Lawyers 585
232Ibid., pp. 23-24, para. 31.
233Ibid., p. 24, para. 31.
234Ibid., p. 24, para. 32.
“it clearly sought – by means of an interview – to expose, analyse and
explain this particular group of youths, limited and frustrated by their
social situation, with criminal records and violent attitudes, thus dealing
with specific aspects of a matter that already then was of great public
concern.”235
Furthermore, the European Court was “not convinced by the argument, also
stressed by the national courts ... that the Greenjackets item was presented
without any
attempt to counterbalance the extremist views expressed. Both the TV
presenter’s
introduction and the applicant’s conduct during the interviews clearly dissociated
him
from the persons interviewed.”236 The Court added that:
“News reporting based on interviews, whether edited or not, constitutes
one of the most important means whereby the press is able to play its vital
role of ‘public watchdog’ ... The punishment of a journalist for assisting in
the dissemination of statements made by another person in an interview
would seriously hamper the contribution of the press to discussion of
matters of public interest and should not be envisaged unless there are
particularly strong reasons for doing so. In this regard the Court does not
accept the Government’s argument that the limited nature of the fine
is relevant; what matters is that the journalist was convicted.”237
There could be no doubt “that the remarks in respect of which the
Greenjackets were convicted ... were more than insulting to members of the
targeted
groups and did not enjoy the protection of Article 10". However, “it [had] not
been
shown, that, considered as a whole, the feature was such as to justify also [the
applicant’s] conviction of, and punishment for, a criminal offence under the Penal
Code.”238 It followed that “the reasons adduced in support of the applicant’s
conviction
and sentence were not sufficient to establish convincingly that the interference
thereby
occasioned with the enjoyment of his right to freedom of expression was
‘necessary in a
democratic society’; in particular the means employed were disproportionate to
the aim
of protecting ‘the reputation or rights of others’.” The measures therefore
violated
article 10 of the Convention.239
The protection of the reputation or rights of others was also at issue in the
case of Bergens Tidende and Others v. Norway concerning a Norwegian
newspaper, its
editor-in-chief and one of its journalists. The complaint originated in an article
published in the newspaper concerning women who were dissatisfied with the
work of
a cosmetic surgeon. The article followed a previous article in which the
newspaper had
described the surgeon’s work and the advantages of cosmetic surgery, following
which
a number of women had contacted the newspaper with their complaints.240 The
second
article, which was critical of the surgery performed, was published on the
newspaper’s
front page with the title “Beautification resulted in disfigurement”. In it the
women
235Ibid., p. 24, para. 33.
236Ibid., p. 25, para. 34.
238Ibid., pp. 25-26, para. 35.
239Ibid., p. 26, para. 37.
240Eur. Court HR, Case of Bergens Tidende and Others v. Norway, judgment of 2 May 2000; the text used in
this context is the unedited
version of the judgment found on the Court’s web site: http://hudoc.echr.coe.int/, paras. 9-11.
stated, inter alia, that they had been “disfigured and ruined for life”. 241 As a
consequence of the negative publicity, the surgeon lost patients and had to close
his
business. Following complaints about him to the health authorities by dissatisfied
patients, the authorities concluded that he had not performed any improper
surgery and
therefore took no action.242 The surgeon instituted defamation proceedings
against the
applicants and, although the court of second instance found in their favour, the
Supreme Court eventually found in favour of the surgeon, awarding him
damages and
costs totalling 4,709,861 Norwegian kroner.243
There was agreement between the parties before the European Court that this
measure constituted an interference with the applicants’ right to freedom of
expression
that needed to be justified under article 10(2), that it was “prescribed by law”,
namely
Section 3(6) of the Damage Compensation Act 1969, and that it pursued the
legitimate
aim of protecting “the reputation or rights of others”. As in so many other cases
brought under article 10 of the European Convention, the only question that
remained
to be decided was whether the interference could be considered to be
“necessary in a
democratic society”.244
Recalling its well-established case law on freedom of expression and the
essential role played by the press in a democratic society, including its
obligations and
responsibilities, the Court stated that it was
“mindful of the fact that journalistic freedom also covers possible recourse
to a degree of exaggeration, or even provocation ... In such cases as the
present one, the national margin of appreciation is circumscribed by the
interests of a democratic society in enabling the press to exercise its vital role
of ‘public watchdog’ by imparting information of serious public concern.”245
In the Court’s view, “the impugned articles ... concerned an important aspect of
human health and as such raised serious issues affecting the public interest.”
Where, as in
this case, “measures taken by the national authorities are capable of
discouraging the
press from disseminating information on matters of legitimate public concern,
careful
scrutiny of the proportionality of the measures on the part of the Court is called
for.”246
However, the exercise of freedom of expression “carries with it ‘duties and
responsibilities’ which also apply to the press ... [T]hese ‘duties and
responsibilities’
assume significance when, as in the present case, there is question of attacking
the
reputation of private individuals and undermining the ‘rights of others’.”
Consequently,
“by reason of the ‘duties and responsibilities’ inherent in the exercise of
freedom of expression, the safeguard afforded by Article 10 to journalists
in relation to reporting on issues of general interest is subject to the proviso
that they are acting in good faith in order to provide accurate and reliable
information in accordance with the ethics of journalism.”247
Lawyers 587
241Ibid., para. 12.
242Ibid., paras. 17-19.
243Ibid., paras. 20-24.
244Ibid., para. 33.
245Ibid., para. 49.
246Ibid., paras. 51-52.
247Ibid., para. 53.
The Court attached considerable weight to the fact “that in the present case
the women’s accounts of their treatment by Dr R. were found not only to have
been
essentially correct but also to have been accurately recorded by the newspaper.”
Reading the articles as a whole, the Court could not find that the statements
were
excessive or misleading.248 “The Court [was] further unable to accept that the
reporting
of the accounts of the women showed a lack of any proper balance.” It pointed
out that
“news reporting based on interviews constitutes one of the most important
means
whereby the press is able to play its vital role of ‘public watchdog’.”249 Invoking
its
judgment in the Jersild case, the Court stated that “the methods of objective and
balanced reporting may vary considerably, depending among other things on the
medium in question”; it was not for the Court, any more than it was for the
national
courts, “to substitute its own views for those of the press as to what techniques
of
reporting should be adopted by journalists.” Lastly, the Court noted that on the
same
page as the first impugned article, there was an interview with another cosmetic
surgeon
referring to the “small margins between success and failure” in this field as well
as an
interview with the accused cosmetic surgeon who drew attention to the fact that
complications occurred in 15-20 per cent of all operations. Moreover, another
two
articles defending Dr. R. had been published by the newspaper.250
While accepting that the publication of the relevant articles “had serious
consequences for the professional practice of Dr R.”, the European Court was of
the
opinion that, “given the justified criticisms relating to his post-surgical care and
follow-up treatment, it was inevitable that substantial damage would in any
event be
done to his professional reputation.”251 In the light of all these considerations,
the
Court could not find “that the undoubted interest of Dr R. in protecting his
professional reputation was sufficient to outweigh the important public interest
in the
freedom of the press to impart information on matters of legitimate public
concern. In
short, the reasons relied on by the respondent State, although relevant, [were]
not
sufficient to show that the interference complained of was ‘necessary in a
democratic
society’.” It followed that “there was no reasonable relationship of proportionality
between the restrictions placed by the measures applied by the Supreme Court
on the
applicants’ right to freedom of expression and the legitimate aim pursued.”252
Article 10
of the European Convention had therefore been violated.
Subject to the restrictions specified in article 10(2) of the European
Convention on Human Rights, freedom of expression has to be
guaranteed to allow the press to perform its task as purveyor of
information and as public watchdog.
Freedom of political debate is at the very core of the concept of a
democratic society which permeates the European Convention.
248Ibid., para. 56.
249Ibid., para. 57.
250Ibid., para. 57.
251Ibid., para. 59.
252Ibid., para. 60.
Freedom of the press affords the public one of the best means of
discovering and forming an opinion of the ideas and attitudes of political
leaders.
Freedom of the press protects not only the substance of ideas and
information but also the form in which they are conveyed and journalists
therefore have the right to decide what technique of reporting to adopt.
The exercise of freedom of expression carries with it “duties and
responsibilities”. To benefit from the protection of article 10 of the
European Convention when reporting on issues of general interest,
journalists are required to act in good faith in order to provide accurate
and reliable information in accordance with the ethics of their profession.
News reporting based on interviews, whether edited or not, constitutes
one
of the most important means whereby the press is able to play its vital
role of public watchdog. Punishment of journalists for assisting in the
dissemination of statements by other persons should not therefore be
envisaged unless there are particularly strong reasons for doing so.
Convictions or other sanctions on reporting are likely to hamper the press
in performing its task as a public watchdog.
It may be necessary in a democratic society to restrict the exercise of
freedom of expression, for instance to maintain “the authority and
impartiality of the judiciary” and to protect “the reputation or rights of
others”.
However, a matter does not cease to be of public interest just because it is
part of pending litigation. Interference with freedom of expression in such
a matter is therefore justified only if it corresponds to a social need that is
sufficiently pressing to outweigh the public interest in the free flow of
information. The Contracting States must provide relevant and sufficient
reasons to establish convincingly that such a need exists to justify the
interference.
Although political leaders also enjoy protection for their “reputation or
rights” under article 10(2) of the Convention, the limits of acceptable
criticism are wider in their case than in the case of private individuals.
When politicians act in their official capacity, the requirement that they
be protected under article 10(2) must be weighed against the interest of
an
open discussion of political issues.
3.5.3 Freedom of expression of elected members of professional
organizations
The case of Nilsen and Johnsen v. Norway raised the question of freedom of
expression for members of professional organizations, in this case policemen.
The first
applicant was a police inspector and Chairman of the Norwegian Police
Association
and the second a police constable and Chairman of the Bergen Police
Association.
Their complaint under article 10 originated in their conviction by the Oslo City
Court
Lawyers 589
for defamation under the Norwegian Penal Code. The defamatory statements
were
published in three newspapers and concerned critical remarks regarding a
professor’s
reports on police brutality. One applicant was ordered to pay non-pecuniary
damages
to the professor and both applicants were ordered to pay him substantial sums
for legal
costs.253
It was agreed among the parties that the impugned measures interfered with
the applicants’ freedom of expression, that the interference was “prescribed by
law”
and pursued a legitimate aim, namely “the protection of the reputation or rights
of
others”. It therefore only remained for the European Court of Human Rights to
decide
whether the measure was “necessary in a democratic society”.254 This
question was
of particular importance in the case, given that the applicants had tried to
counter
serious allegations of misconduct by the police in the Norwegian city of Bergen.
The
Court held in this regard that:
“A particular feature of the present case is that the applicants were
sanctioned in respect of statements they had made as representatives of
police associations in response to certain reports publicising allegations of
police misconduct. While there can be no doubt that any restrictions
placed on the right to impart and receive information on arguable
allegations of police misconduct call for a strict scrutiny on the part of the
Court ... the same must apply to speech aimed at countering such
allegations since it forms part of the same debate. This is especially the case
where, as here, the statements in question have been made by elected
representatives of professional associations in response to allegations
calling into question the practices and integrity of the profession. Indeed, it
should be recalled that the right to freedom of expression under Article 10
is one of the principal means of securing effective enjoyment of the right to
freedom of assembly and association as enshrined in Article 11.”255
The European Court considered that the reasons relied upon by the
Norwegian courts were “clearly relevant” in that they aimed at protecting the
professor’s reputation. The Norwegian Supreme Court, for instance, had found
that
the defamatory statements amounted to accusations of “falsehood”, “deliberate
lies”,
“unworthy and malicious motives” and “dishonest motives”.256 But were these
reasons
“sufficient” for the purposes of article 10(2)? The Court observed in this regard
that
the case had its background “in a long and heated public debate in Norway on
investigations into allegations of police violence, notably in the city of Bergen”
and that
“the impugned statements clearly bore on a matter of serious public concern.”
Importantly, however, it noted in this regard
“that, according to the Strasbourg Court’s case law, there is little scope
under Article 10 § 2 of the Convention for restrictions on political speech
or on debate on questions of public interest.”257
253Eur. Court HR, Case of Nilsen and Johnsen v. Norway, judgment of 25 November 1999, Reports 1999-VIII,
pp. 72-75, para. 25, and
p. 76, para. 27.
254Ibid., p. 82, para. 39.
255Ibid., pp. 85-86, para. 44.
257Ibid., pp. 86-87, para. 46.
However, “even in debate on matters of serious public concern, there must be
limits to the right to freedom of expression.” The issue was therefore “whether
the
applicants [had] exceeded the limits of permissible criticism”.258
The European Court accepted that the Norwegian courts were justified in
declaring null and void the statement accusing the professor of deliberate lies,
since this
statement “exceeded the limits of permissible criticism”. However the same was
not
true of the remaining statements, which were “rather akin to value
judgments”.259
In assessing the necessity for the interference, the Court also had regard to
“the role played by the injured party in the present case”. It noted that “he had
used a
number of derogatory expressions, such as ‘misinformation’, ‘despotism’” and
had
alleged that there was “a ‘criminal sub-culture’ in the Bergen police”.260
However,
“bearing in mind that the applicants were, in their capacity as elected
representatives of professional associations, responding to criticism of the
working methods and ethics within the profession, the Court considers
that, in weighing the interests of free speech against those of protection of
reputation under the necessity test in Article 10 § 2 of the Convention,
greater weight should be attached to the plaintiff’s own active involvement
in a lively public discussion than was done by the national courts when
applying national law... The statements at issue were directly concerned
with the plaintiff’s contribution to that discussion. In the Court’s view, a
degree of exaggeration should be tolerated in the context of such a heated
and continuing public debate of affairs of general concern, where on both
sides professional reputations were at stake.”261
In the light of the foregoing, the Court was “not satisfied” that the remaining
statements “exceeded the limits of permissible criticism for the purposes of”
article 10
of the Convention. At the heart of the long and heated public discussion was the
question of the truth of allegations of police violence and there was factual
support for
the assumption that false allegations had been made by informers. The
statements in
question essentially addressed this issue and the admittedly harsh language in
which
they were expressed was not incommensurate with that used by the injured
party who,
since an early stage, had participated as a leading figure in the debate. The
Court
concluded that there had been a violation of article 10, since there were not
“sufficient
reasons” to support the interference with the applicant’s freedom of expression,
which
was therefore not “necessary in a democratic society”.262
There is little scope under article 10(2) of the European Convention for
restrictions on political speech or on debate on questions of public
interest.
However, when persons criticize others, there is a limit that may not be
exceeded.
Lawyers 591
258Ibid., p. 87, para. 47.
259Ibid., p. 87, paras. 49-50.
260Ibid., pp. 88-89 , para. 52.
261Ibid., p. 89, para. 52.
262Ibid., p. 89, para. 53.
Restrictions placed on the right to impart and receive information on
arguable allegations of, for instance, police misconduct call for strict
European supervision. The same applies to restrictions on speech aimed
at countering such allegations, since they form part of the same debate.
This approach is particularly valid where the impugned statements have
been made by elected representatives of professional organizations in
response to alleged violations of their professional integrity and ethics.
Moreover, freedom of expression as guaranteed by article 10 of the
European Convention on Human Rights is one of the principal means of
securing the effective enjoyment of freedom of assembly and association
guaranteed by article 11.
3.5.4 Freedom of expression of elected politicians
The European Court has stated that:
“while freedom of expression is important for everybody, it is especially so
for an elected representative of the people. He or she represents the
electorate, draws attention to their preoccupations and defends their
interests. Accordingly, interferences with the freedom of expression of an
opposition Member of Parliament ... call for the closest scrutiny on the part
of the Court.”263
In the case in question, Jerusalem v. Austria, the applicant, who was a member
of the Vienna Municipal Council which also acted as the Regional Parliament, had
been
prohibited by the Austrian courts, on the basis of article 1330 of the Austrian
Civil
Code, from repeating statements to the effect that two named associations, IPM
and its
Swiss counterpart VPM, “were sects of a totalitarian character”.264 During a
debate in
the Vienna Municipal Council concerning the granting of subsidies to an
association
assisting parents whose children had become involved in sects, the applicant
had stated
that sects that were “psycho-sects” existed in Vienna and had common features
such as
“their totalitarian character” and “fascist tendencies”. The applicant had also
stated that
IPM had “gained influence on the drug policy of the Austrian People’s Party”.265
The
Austrian association, as well as its Swiss counterpart VPM, requested the Vienna
Regional Court to issue an injunction against the applicant, prohibiting her from
repeating that IPM was a sect. The request was granted.
The Court endorsed the parties’ assessment in this case that the injunction
constituted an interference with the applicant’s freedom of expression as
guaranteed by
article 10(1) of the Convention, and that the interference was both “prescribed
by
law”and pursued a legitimate aim, namely “the protection of the reputation or
rights of
others” within the meaning of article 10(2). It therefore remained to be
determined
263Eur. Court HR, Case of Jerusalem v. Austria, judgment of 27 February 2001; the text used is the unedited
version found on the
Court’s web site: http://hudoc.echr.coe.int/, para. 36.
264Ibid., para. 18.
265Ibid., para. 10.
whether the injunction was also “necessary in a democratic society” for that
particular
purpose.266
After emphasizing the importance of freedom of expression also for elected
representatives of the people, the European Court recalled
“that the limits of acceptable criticism are wider with regard to politicians
acting in their public capacity than in relation to private individuals, as the
former inevitably and knowingly lay themselves open to close scrutiny of
word and deed by both journalists and the public at large. Politicians must
display a greater degree of tolerance, especially when they themselves make
public statements that are susceptible to criticism.”267
Referring to its abovementioned judgment in the Nilsen and Johnsen case, the
Court observed, however, that “private individuals or associations lay
themselves open
to scrutiny when they enter the arena of public debate.” In the case before the
Court,
the two associations were “active in a field of public concern, namely drug
policy. They
participated in public discussions on this matter and, as the Government
conceded,
co-operated with a political party. Since the associations were active in this
manner in
the public domain, they ought to have shown a higher degree of tolerance to
criticism
when opponents consider their aims and the means employed in that debate.”268
The Court then noted that the statements in question, which were made in the
course of a political debate in the Vienna Municipal Council, were thus also
“made in a
forum which was at least comparable to a Parliament as concerns the public
interest in
protecting the participants’ freedom of public expression”. It added that:
“In a democracy, Parliament or such comparable bodies are the essential
fora for political debate. Very weighty reasons must be advanced to justify
interfering with the freedom of expression exercised therein.”269
Contrary to the Austrian courts, the European Court accepted that the
applicant’s statements, which reflected “fair comments on matters of public
interest by
an elected member of the Municipal Council [were] to be regarded as value
judgments
rather than statements of fact”. The question that had to be decided was
therefore
“whether there existed a sufficient factual basis for such value judgments”.270
The Court noted that, in order to prove her value judgments, the applicant
had offered documentary evidence on the internal structure and activities of the
plaintiffs, including a judgment handed down by a German court on the matter.
While
the Austrian Regional Court had accepted this evidence, it had rejected the
applicant’s
proposed witnesses as well as a suggested expert opinion.271 The European Court
stated that it was “struck by the inconsistent approach of the domestic courts”
which,
on the hand, required proof of a statement and, on the other, refused to consider
all
available evidence. It concluded that
Lawyers 593
266Ibid., para. 30.
267Ibid., para. 38.
268Ibid., paras. 38-39.
269Ibid., para. 40.
270Ibid., paras. 44-45.
271Ibid., para. 45.
“in requiring the applicant to prove the truth of her statements, while at the
same time depriving her of an effective opportunity to adduce evidence to
support her statements and thereby show that they constituted a fair
comment, the Austrian Courts overstepped their margin of appreciation
and that the injunction granted against the applicant amounted to a
disproportionate interference with her freedom of expression.”272
There had consequently been a breach of article 10.
Freedom of expression as guaranteed by article 10 of the European
Convention is of particular importance for elected representatives of the
people such as members of local, regional and national parliaments who
represent and defend the interests of their electorate.
When entering the arena of public debate, politicians lay themselves open
to close scrutiny of what they do and what they say. They must therefore
accept wider limits of criticism as well as a correspondingly greater degree
of tolerance. The same is true of private persons and associations who
participate in political debates on matters of public concern.
In a democratic society, where parliament and other elected bodies are
the
primary forums for political debate, very weighty reasons must be
advanced to justify restrictions on the exercise of freedom of expression in
those forums.
3.5.5 Freedom of artistic expression
Article 10 of the European Convention
“includes freedom of artistic expression – notably within freedom to
receive and impart information and ideas – which affords the opportunity
to take part in the public exchange of cultural, political and social
information and ideas of all kinds ... Those who create, perform, distribute
or exhibit works of art contribute to the exchange of ideas and opinions
which is essential for a democratic society. Hence the obligation on the
State not to encroach unduly on their freedom of expression.”273
In the case of Karatas v. Turkey, the applicant had been convicted by the
Istanbul National Security Court of violating Section 8 of the Prevention of
Terrorism
Act (Law No. 3713) by publishing an anthology of poems entitled The song of a
rebellion –
Dersim. Following an amendment to the law, the sentence was reduced to one
year, one
month and ten days, but the fine imposed was increased to 111,111,110 Turkish
liras.274
Section 8 of the Prevention of Terrorism Act outlawed written and spoken
propaganda,
meetings, assemblies and demonstrations aimed at undermining the territorial
integrity
of the Republic of Turkey or the indivisible unity of the nation.
272Ibid., para. 46.
273Eur. Court HR, Case of Karatas v. Turkey, judgment of 8 July 1999, Reports 1999-IV, p. 108, para. 49.
274Ibid., pp. 90-95, paras. 9-15.
The Court accepted that the conviction constituted an “interference” with the
applicant’s exercise of his right to freedom of expression, that the conviction was
“prescribed by law”, namely by article 8 of the Prevention of Terrorism Act, and
that
the measure pursued a legitimate aim. With regard to the latter point, the Court
considered that
“having regard to the sensitivity of the security situation in south-east
Turkey ... and to the need for the authorities to be alert to acts capable of
fuelling additional violence, the measures taken against the applicant can
be said to have been in furtherance of certain of the aims mentioned by the
Government, namely the protection of national security and territorial
integrity and the prevention of disorder and crime. This is certainly true
where, as with the situation in south-east Turkey at the time of the
circumstances of this case, the separatist movement had recourse to
methods which rely on the use of violence.”275
It thus remained for the European Court to decide whether the conviction of
the applicant was proportionate to this legitimate aim and thus necessary in a
democratic society. It observed that the applicant was “a private individual who
expressed his views through poetry – which by definition is addressed to a very
small
audience – rather than through the mass media, a fact which limited their
potential
impact on ‘national security’, [public] ‘order’ and ‘territorial integrity’ to a
substantial
degree”. Even though some passages seemed “very aggressive in tone and to
call for the
use of violence, the Court [considered] that the fact that they were artistic in
nature and
of limited impact made them less a call to an uprising than an expression of
deep
distress in the face of a difficult political situation.”276 Furthermore, the Court
noted
that the applicant had been convicted “not so much for having incited to
violence, but
rather for having disseminated separatist propaganda by referring to a particular
region
of Turkey as ‘Kurdistan’ and for having glorified the insurrectionary movements
in that
region”277. The Court was “above all ... struck by the severity of the penalty
imposed on
the applicant”.278 For all these reasons, it concluded that the applicant’s
conviction
“was disproportionate to the aims pursued and, accordingly, not ‘necessary in a
democratic society’. There [had] therefore been a violation of Article 10 of the
Convention.”279
Freedom of artistic expression was also at issue in the case of Müller and
Others
v. Switzerland, in which the applicants had been convicted under article 204(1)
of the
Swiss Criminal Code for having published “obscene” items at an exhibition. The
Court
accepted that this conviction, as well as the order – although subsequently lifted
– to
confiscate the paintings, constituted an interference with the applicants’ right to
freedom of expression which had to be justified under article 10(1) in order to be
lawful.280
Lawyers 595
275Ibid., pp. 105-106, paras. 36, 40 and 44.
276Ibid., p. 109, para. 52.
277Ibid., pp. 109-110, para. 52.
278Ibid., p. 110, para. 53.
279Ibid., p. 110, para. 54.
280Eur. Court. HR, Case of Müller and Others v. Swutzerland, judgment of 24 May 1988, Series A, No. 133, p.
19, para. 28.
The Court accepted that the measure was prescribed by law and that the
conviction pursued a legitimate aim in that it was designed to protect public
morals.281
Recalling the fundamental role played by freedom of expression in a democratic
society, the Court admitted that “artists and those who promote their work are
certainly
not immune from the possibility of limitations as provided for in [ article 10(2) of
the
Convention]. Whoever exercises his freedom of expression undertakes, in
accordance
with the express terms of that paragraph, ‘duties and responsibilities’: their
scope will
depend on his situation and the means he uses.”282 As to the term morals,
“ it is not possible to find in the legal and social orders of the Contracting
States a uniform European conception of morals. The view taken of the
requirements of morals varies from time to time and from place to place,
especially in our era, characterised as it is by a far-reaching evolution of
opinions on the subject. By reason of their direct and continuous contact
with the vital forces of their countries, State authorities are in principle in a
better position than the international judge to give an opinion on the exact
content of these requirements as well as on the ‘necessity’ of a ‘restriction’
or ‘penalty’ intended to meet them.”283
The Court recognized, “as did the Swiss courts, that conceptions of sexual
morality [had] changed in recent years. Nevertheless, having inspected the
original
paintings, the Court [did]not find unreasonable the view taken by the Swiss
courts that
those paintings, with their emphasis on sexuality in some of its crudest forms,
were
‘liable grossly to offend the sense of sexual propriety of persons of ordinary
sensitivity’.” Having regard to the margin of appreciation granted to the Swiss
courts in
the matter, the European Court concluded that the disputed measures did not
infringe
article 10 of the Convention.284
Freedom of artistic expression is protected by article 10 of the European
Convention on Human Rights and is an essential component of a
democratic society.
Freedom of artistic expression includes, in particular, the freedom to
receive and impart information and ideas which enable people to take
part in the public exchange of cultural, political and social information
and ideas of all kinds.
The exercise of freedom of artistic expression cannot be lawfully interfered
with on any grounds other than those specified in article 10(2) of the
European Convention.
281Ibid.,pp. 20-21, paras. 29-30.
282Ibid.,p. 22, para. 34.
283Ibid.,p. 22, para. 35.
284Ibid.,pp. 22-23, paras. 36-37. On the notion of “morals”, see also the Eur. Court HR, Handyside Case,
judgment of 7 December
1976, Series A, No. 24, pp. 23-28, paras. 49-59. For more information on freedom of expression, see also the
web site of the
organization “Article 19” (www.article19.org) on which it is possible to consult The Virtual Freedom of
Expression Handbook.
To determine what is necessary in a democratic society in order to protect
public morals, the Contracting States have a wider margin of
appreciation than when they impose restrictions on the exercise of
freedom
of expression for legitimate aims that are of a more objective nature.
4. The Rights to Freedom of
The rights to freedom of association and assembly are closely related and will
therefore be considered jointly in this chapter. As these two freedoms are not
dealt with
in the same order in the treaties considered, for the sake of consistency freedom
of
association will generally be dealt with prior to freedom of assembly.
Article 20 of the Universal Declaration of Human Rights provides that:
“1. Everyone has the right to freedom of peaceful assembly and
association.
2. No one may be compelled to belong to an association.”
Article 22 of the International Covenant on Civil and Political Rights
concerning the right to freedom of association reads as follows:
“1. Everyone shall have the right to freedom of association with others,
including the right to form and join trade unions for the protection of his
interests.
2. No restrictions may be placed on the exercise of this right other than
those which are prescribed by law and which are necessary in a democratic
society in the interests of national security or public safety, public order
(ordre public), the protection of public health or morals or the protection of
the rights and freedoms of others. This Article shall not prevent the
imposition of lawful restrictions on members of the armed forces and of
the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the
International Labour Organization Convention of 1948 concerning
Freedom of Association and Protection of the Right to Organize to take
legislative measures which would prejudice, or to apply the law in such a
manner as to prejudice, the guarantees provided for in that Convention.”
Article 21 of the International Covenant on Civil and Political Rights
guarantees the right to peaceful assembly in the following terms:
Lawyers 597
“The right of peaceful assembly shall be recognized. No restrictions may
be placed on the exercise of this right other than those imposed in
conformity with the law and which are necessary in a democratic society in
the interests of national security or public safety, public order (ordre public),
the protection of public health or morals or the protection of the rights and
freedoms of others.”
Article 10 of the African Charter on Human and Peoples’ Rights guarantees
the right to free association:
“1. Every individual shall have the right to free association provided that
he abides by the law.
2. Subject to the obligation of solidarity provided for in Article 29 no
one may be compelled to join an association.”
The right to freedom of assembly is contained in article 11 of the African
Charter:
“Every individual shall have the right to assemble freely with others. The
exercise of this right shall be subject only to necessary restrictions provided
for by law in particular those enacted in the interest of national security, the
safety, health, ethics and rights and freedoms of others.”
Article 16 of the American Convention on Human Rights guarantees freedom
of association:
“1. Everyone has the right to associate freely for ideological, religious,
political, economic, labor, social, cultural, sports, or other purposes.
2. The exercise of this rights shall be subject only to such restrictions
established by law as may be necessary in a democratic society, in the
interest of national security, public safety or public order, or to protect
public health or morals or the rights and freedoms of others.
3. The provisions of this article do not bar the imposition of legal
restrictions, including even deprivation of the exercise of the right of
association on members of the armed forces and the police.”
Article 15 of the American Convention on Human Rights safeguards the right
of peaceful assembly:
“The right of peaceful assembly, without arms, is recognized. No
restrictions may be placed on the exercise of this right other than those
imposed in conformity with the law and necessary in a democratic society
in the interest of national security, public safety or public order, or to
protect public health or morals or the rights or freedoms of others.”
Both freedoms are included in article 11 of the European Convention on
Human Rights, which reads:
“1. Everyone has the right to freedom of peaceful assembly and to
freedom of association with others, including the right to form and to join
trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other
than such as are prescribed by law and are necessary in a democratic society
in the interests of national security or public safety, for the prevention of
disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. This Article shall not
prevent the imposition of lawful restrictions on the exercise of these rights
by members of the armed forces, of the police or of the administration of
the State.”
The right to freedom of peaceful assembly and association is also guaranteed
by article 5(d)(ix) of the International Convention on the Elimination of All Forms
of
Racial Discrimination, article 15 of the Convention on the Rights of the Child and
article 8 of the African Charter on the Rights and Welfare of the Child, while
freedom
of association is expressly guaranteed also by article 4 of the Inter-American
Convention on the Prevention, Punishment, and Eradication of Violence against
Women. The right to form trade unions and to join a trade union of one’s choice
is
recognized by article 8 of the International Covenant on Civil and Political Rights,
article 8 of the Additional Protocol to the American Convention on Human Rights
in
the Area of Economic, Social and Cultural Rights, article 5 of the European Social
Charter, 1961, and article 5 of the European Social Charter, 1996 (revised).
Freedom of association is, of course, also protected by the ILO Freedom of
Association and Protection of the Right to Organise Convention, 1948 (No. 87),
and
the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). The
ILO is
working extensively in the area of freedom of association, particularly within the
framework of the Freedom of Association Committee of its Governing Body. In
the
present context, however, freedom of assembly and freedom of association will
be
considered only to the extent that they have been dealt with by the monitoring
bodies
under the major international human rights treaties.
4.2 Articles 21 and 22 of the International Covenant
on Civil and Political Rights
4.2.1 Origin and meaning of the “in a democratic society” concept
The drafting of article 21 and article 22 of the International Covenant on Civil
and Political Rights followed each other very closely and, contrary to article 19(3)
relating to freedom of expression, the limitation provisions of both articles
contain a
reference to “a democratic society”. These terms were inserted in article 21 at
the eighth
session of the United Nations Commission on Human Rights in 1952 at the
suggestion
of France,285 which had already tried in vain, at the Commission’s fifth session in
1949,
to have the concept inserted in the text. At the time, France argued that the
insertion of
the concept was “essential”, since it was already contained in the general
limitation
provision of article 29 of the Universal Declaration of Human Rights.286 The
proposal
was renewed at the Commission’s sixth session in 1950, when Australia opposed
it
Lawyers 599
285For the amendment see UN doc. E/CN.4/L.201. For the vote see UN doc. E/CN.4/SR.325, p. 20.
286UN doc. E/CN.4/SR.120, p. 9. For the vote rejecting the proposal, see UN doc. E/CN.4/SR.121, p. 5.
since, at the time, the notion of “democracy” embraced two diametrically
opposed
concepts. However, Chile was in favour since “it was possible to classify States
as
democratic or anti-democratic by taking into consideration how each State
complied
with the principles laid down in the Charter, the Universal Declaration of Human
Rights and the Covenant.”287 The French representative stated that
“63. ... he defined a democratic society as a society based upon respect for
human rights. Public order in such a society was based on the recognition
by the authorities of the dignity of the individual and the protection of his
rights. Undemocratic societies were characterized by a disdain for human
rights.
64. ... It was important to adhere to the spirit of the Universal
Declaration of Human Rights and to declare forthrightly that even public
order was subordinate to human rights. The reference to a democratic
society should therefore be included.”288
The Lebanese representative, however, considered that the French definition
“was subject to abuse, since often the greatest tyrannies claimed to respect
human
rights as they conceived those rights.” On the other hand, if the French
amendment
meant the total doctrine of human rights as promulgated in the Universal
Declaration,
he would accept it, although he felt “that the statement should be made
explicit”.289
In 1952 the term “in a democratic society” was also inserted in the text of the
article on the right to freedom of association over objections by the United States
because of its “ambiguity”.290 In the subsequent discussions in the Third
Committee of
the General Assembly, Sweden pointed out that “the right to form and join
associations
of one’s choice was an important one in a democratic society.”291 Italy observed
that
“freedom of political association completed the freedoms of opinion, expression
and
assembly, respect for which was the essential characteristic of a truly democratic
State.”292 As shown in this chapter, the intrinsic relationship between the
freedoms of
expression, association and peaceful assembly has subsequently been
consistently
emphasized by the international monitoring bodies.
The drafters of the International Covenant on Civil and Political Rights
considered that freedom of association and freedom of peaceful assembly
are fundamental elements of a democratic society, which they described
as
a society respectful of human rights.
287UN doc. E/CN.4/SR.169, p. 10, para. 41 (Australia), and p. 13, para. 54 (Chile).
288Ibid., p. 14, paras. 63-64.
289Ibid., p. 14, para. 65.
290UN doc. E/CN.4/SR.325, para. 15 (United States). For the text of the French amendment, see UN doc.
E/CN.4/L.202.
On the vote, see UN doc. E/CN.4/SR.326, p. 5.
291UN doc. GAOR, 16th session, 1961-1962, v. 1, Third Committee, doc. A/C.3/SR.1087, p. 134, para. 16.
292Ibid., UN doc. A/C.3/SR.1088, p. 139, para. 8.
4.2.2 Freedom of association
The Human Rights Committee expressed concern “at the absence of specific
legislation on political parties” in the Syrian Arab Republic “and at the fact that
only
political parties wishing to participate in the political activities of the National
Progressive Front, led by the Baath Party, are allowed. The Committee [was] also
concerned at the restrictions that can be placed on the establishment of private
associations and institutions ... including independent non-governmental
organizations
and human rights organizations.” Hence, “the State party should ensure that the
proposed law on political parties is compatible with the provisions of the
Covenant. It
should also ensure that the implementation of the Private Associations and
Institutions
Act No. 93 of 1958 is in full conformity with articles 22 and 25 of the
Covenant.”293
The Committee observed that the restrictions on freedom of expression in
force in Iraq not only violated article 19 of the Covenant but also impeded the
implementation of articles 21 and 22 which protect the rights to freedom of
peaceful
assembly and association. “Therefore: penal laws and decrees which impose
restrictions on the rights to freedom of expression, peaceful assembly and
association
should be amended so as to comply with articles 19, 21 and 22 of the
Covenant.”294
The Human Rights Committee expressed concern at difficulties in Belarus
arising from “the registration procedures to which non-governmental
organizations
and trade unions are subjected. The Committee also [expressed] concern about
reports
of cases of intimidation and harassment of human rights activists by the
authorities,
including their arrest and the closure of the offices of certain non-governmental
organizations. In this regard: The Committee, reiterating that the free functioning
of
non-governmental organizations is essential for the protection of human rights
and
dissemination of information in regard to human rights among the people,
[recommended] that laws, regulations and administrative practices relating to
their
registration and activities be reviewed without delay in order that their
establishment
and free operation may be facilitated in accordance with article 22 of the
Covenant.”295
The Committee was “very concerned about interference by the [Venezuelan]
authorities in trade union activities including the free election of union leaders
[and
recommended that the] State party should, pursuant to article 22 of the
Covenant,
guarantee that unions are free to conduct their business and choose their
business
without official interference.”296 The Committee was also concerned that in
Germany
“there is an absolute ban on strikes by public servants who are not exercising
authority
in the name of the State and are not engaged in essential services, which may
violate
article 22 of the Covenant.”297 The Committee also regretted that civil servants in
Lebanon “continue to be denied the right to form associations and to bargain
collectively” in violation of article 22 of the Convention.298
Lawyers 601
293UN doc. GAOR, A/56/40 (vol. I). pp. 75-76, para. 26.
295Ibid., p. 29, para. 155.
296UN doc. GAOR, A/56/40 (vol. I). p. 53, para. 27.
298Ibid., p. 57, para. 357.
4.2.3 Freedom of assembly
While noting the statements by the State party to the effect that freedom of
assembly was “fully respected” in the Syrian Arab Republic, the Human Rights
Committee remained concerned at the restrictions in the Penal Code on the
holding of
public meetings and demonstrations, since they exceeded those authorized by
article
21.299 The Committee also expressed concern at the fact that the legal rules in
the
Netherlands Antilles on the right of peaceful assembly “contain a general
requirement
of prior permission from the local police chief. [It recommended that the] State
party
should ensure that the right of peaceful assembly may be exercised by all in
strict
conformity with the guarantees of article 21 of the Covenant.”300
The Committee further expressed concern in the case of the Democratic
People’s Republic of Korea “about the restrictions on public meetings and
demonstrations, including possible abuse of the requirements of the laws
governing
assembly. The Committee [requested] the State party to provide additional
information
on the conditions for public assemblies and, in particular, to indicate whether
and under
what conditions the holding of a public assembly can be prevented, and whether
such a
measure can be appealed.”301 The Committee was also concerned that the 1958
Cypriot
law “regulating lawful assembly and requiring permits for public assemblies
[was] not in
compliance with article 21 of the Covenant. In this regard, the Committee
[emphasized]
that restrictions on freedom of assembly must be limited to those which are
deemed
necessary in conformity with the Covenant.”302 A few years later the Committee
noted
the enactment of a new law in Cyprus regulating public assemblies and
processions and
expressed concern about the conditions that the appropriate authorities could
impose
“regarding the conduct of assemblies and processions upon receiving the
required
advance notification. The Committee also [noted] that the advance notice
required to
be given is too early and may unduly curtail the freedom of assembly. The
Committee
[reiterated] that restrictions on freedom of assembly must be limited only to
those
which are in conformity with article 21 of the Covenant.”303
With regard to Mongolia, the Committee observed that the limitations
permitted under Mongolian law on the exercise of certain rights guaranteed by
the
Covenant were “so broad and numerous as to restrict severely the effective
exercise of
such rights”. This was, for instance, the case with “the requirement of prior
permission
for the holding of public meetings and the criteria for refusing such meetings”.
Furthermore, the absence of adequate mechanisms to appeal against
administrative
decisions created an uncertainty as to whether such fundamental rights as the
freedoms
of association, assembly and movement were fully enjoyed in practice.304
The Committee expressed concern “about severe restrictions imposed on the
right to freedom of assembly” in Belarus, which were not in compliance with the
Covenant. It noted in particular that “applications for permits to hold
demonstrations
299UN doc. GAOR, A/56/40 (vol. I). p. 75, para. 25.
300Ibid., p. 82, para. 20.
301Ibid., p. 103, para. 24.
are required to be submitted 15 days prior to the demonstrations and are often
denied
by the authorities, and that Decree No. 5 of 5 march 1997 imposes strict limits
on the
organization and preparation of demonstrations, lays down rules to be observed
by
demonstrators and bans the use of posters, banners or flags that ‘insult the
honour and
dignity of officials of State organs’ or which ‘are aimed at damaging the State
and public
order and the rights and legal interests of citizens’. These restrictions cannot be
regarded as necessary in a democratic society to protect the values mentioned
in article
21 of the Covenant. Therefore: The Committee [recommended] that the right of
peaceful assembly be fully protected and guaranteed in Belarus in law and in
practice
and that limitations thereon be strictly in compliance with article 21 of the
Covenant,
and that Decree No. 5 of 5 March 1997 be repealed or modified so as to be in
compliance with that article.”305
Lastly, the Committee held that the “wholesale ban on demonstrations” on
grounds of “public safety and national security” in Lebanon was not compatible
with
the right to freedom of assembly under article 21 of the Covenant and should be
lifted
as soon as possible.306
Restrictions on the exercise of freedom of expression under article 19(3)
of the International Covenant on Civil and Political Rights may not
impede the full and effective enjoyment of freedom of association and
freedom of peaceful assembly guaranteed by articles 22 and 21 of the
Covenant.
The right to freedom of association in article 22 of the International
Covenant protects, inter alia, the right to form political parties, trade
unions and private associations such as non-governmental organizations,
including human rights organizations.
Article 22 of the Covenant does not authorize States parties to ban civil
servants from forming associations and engaging in collective bargaining.
Restrictions on the right to freedom of association must strictly respect
the
conditions laid down in article 22(2) of the Covenant.
States parties must also ensure that the right to peaceful assembly is
guaranteed on the strict conditions laid down in article 21 of the
Covenant and that limitations on its exercise do not exceed those
expressly permitted thereby.
This means, in particular, that rules requiring prior permission for the
holding of assemblies or demonstrations or any other rules or
requirements governing the holding or conduct of public assemblies must
be limited to those necessary in a democratic society for the legitimate
purposes enumerated in article 21.
Lawyers 603
A wholesale ban on demonstrations for reasons such as public safety and
national security is not compatible with freedom of peaceful assembly as
guaranteed by article 21 of the International Covenant.
States parties have a legal duty to provide effective remedies to persons
who consider that their freedom of association or freedom of peaceful
assembly has been violated.
4.3 Articles 10 and 11 of the African Charter on
Human and Peoples’ Rights
Article 10(1) of the African Charter on Human and Peoples’ Rights
guarantees to every individual “the right to free association provided that he
abides by
the law”. Furthermore, article 10(2) stipulates that “subject to the obligation of
solidarity provided for in Article 29 no one may be compelled to join an
association.”
The words “provided that he abides by the law” are admittedly vague and,
contrary to
the limitation provisions in the corresponding articles of the International
Covenant
and the American and European Conventions, the reference to “law” is not
conditioned by a reference to the terms “necessary”, “a democratic society” or
any
specified purposes which alone can justify restrictions on the exercise of the
right to
It is not clear in what circumstances the individual’s duties towards his or her
family, community and the State as specified in article 29 could justify an
obligation to
join an association.
The exercise of the “right to assemble freely with others” in article 11 of the
Charter can, however, “be subject only to necessary restrictions provided for by
law, in
particular those enacted in the interest of national security, the safety, health,
ethics and
rights and freedoms of others”. The Charter thus adds to the principle of legality
(“provided for by law”) the principle of proportionality (“necessary”), which
provides
some safeguards against excessive limitations. It is noteworthy, on the other
hand, that,
as indicated by the words “in particular”, the legitimate objectives enumerated
in article
11 are not exhaustive and the provision therefore opens up an area of legal
uncertainty.
It should be pointed out, however, that, in accordance with article 60 of the
African Charter, the African Commission on Human and Peoples’ Rights “shall
draw
inspiration” from other international legal standards in the human rights field
when
interpreting the terms of the Charter. As indicated in some of the previous
chapters, the
Commission has frequently done so, also to some extent, as will be seen below,
with
regard to restrictions on the exercise of freedom of association.
4.3.1 Freedom of association
Freedom of association as protected by article 10 of the African Charter on
Human and Peoples’ Rights has been violated on a number of occasions. The
African
Commission on Human and Peoples’ Rights has held, for instance, that article
10(1)
was violated in the case of the World Organization against Torture et Al. v. Zaire.
The
Government of Zaire had imposed restrictions on the number of political parties,
allowing only those supportive of the regime in power to operate. “These
opposition
parties were not permitted to meet in public or private and there was evidence
that the
government attempted to destabilise these groups by harassment. In addition,
human
rights groups [had] been prevented from forming and established bodies in
certain
areas [had] been unable to hold education courses on human rights issues.” In
the
Commission’s view, these actions by the Government constituted “clear
violations” of
article 10(1) of the African Charter.307 The Commission likewise found a violation
of
article 10 in the case of John D. Ouko v. Kenya. Mr. Ouko was a student union
leader in
Kenya, a country he had to leave because of his political opinions after being
arrested
and detained for ten months without trial. The facts of the case were not refuted
by the
Government and the Commission therefore concluded that the persecution of Mr.
Ouko and his flight abroad “greatly jeopardised his chances of enjoying his right
to
freedom of association” as guaranteed by article 10 of the Charter.308
Article 10 was further violated in a case concerning the Nigerian Bar
Association. This communication concerned the Body of Benchers, the then new
governing body of the Nigerian Bar Association, which was dominated by
government
representatives. The Body of Benchers had “wide discretionary powers”,
including
“the disciplining of lawyers”.309 The African Commission held that the Nigerian
Bar
Association, which was “legally independent of the government ... should be able
to
choose its own governing body. Interference with the self-governance of the Bar
Association may limit or negate the reasons for which lawyers desire in the first
place to
form an association.”310 It then recalled its well-established principle that:
“where regulation of the right of freedom of association is necessary, the
competent authorities should not enact provisions which limit the exercise
of this freedom or are against obligations under the Charter. The
competent authorities should not override constitutional provisions or
undermine fundamental rights guaranteed by the constitution and
international human rights standards.”311
The Commission concluded that the Government intervention in the
governing of the Nigerian Bar Association was “inconsistent with the preamble of
the
African Charter, where states reaffirm adherence to the principles of human and
peoples’ rights contained in declarations such as the UN Basic Principles on the
Independence of the Judiciary”. It therefore constituted a violation of article 10 of
the
Charter.312
Lawyers 605
307ACHPR, World Organization against Torture et Al. v. Zaire, Communications Nos. 25/89, 47/90, 56/91,
100/93, decision adopted during
the 19th session, March 1996, para. 75 of the text as published at:
www.up.ac.za/chr/ahrdb/acomm_decisions.html. On the violation of
article 10 of the African Charter as a consequence of the persecution of employees of a human rights
organization, see also ACHPR,
Huri-Laws (on behalf of Civil Liberties Organization) v. Nigeria, Communication No. 225/98, decision adopted
during the 28th Ordinary session, 23
October – 6 November 2000, paras. 48-49 of the text of the decision as published at:
308ACHPR, John D. Ouko v. Kenya, Communication No. 232/99, decision adopted during the 28th Ordinary
session, 23 October – 6 November
2000, para. 30 of the text of the decision as published at:
309ACHPR, Civil Liberties Organisation (on behalf of the Nigerian Bar Association) v. Nigeria, Communication
No. 101/93, decision adopted
during the 17th Ordinary session, March 1995, para. 24 of the text of the decision as published at:
www.up.ac.za/chr/ahrdb/acomm_decisions.html
310Ibid., loc. cit.
311Ibid., para. 25.
312Ibid., para. 26.
Lastly, the African Commission found a violation of article 10 in a case where
a Nigerian Court had concluded that the accused persons were guilty of murder
for the
simple reason that they were members of the Movement for the Survival of the
Ogoni
People (MOSOP). According to the Commission, “it would seem furthermore that
government officials at different times during the trial declared MOSOP and the
accused guilty of the charges, without waiting for the official judgment”. This
demonstrated a clear prejudice against the organisation MOSOP, which the
government had done nothing to defend or justify.313 There had therefore been a
violation of article 10(1).314
Under article 10 of the African Charter on Human and Peoples’
Rights, freedom of association implies that permission must be given for
the creation and functioning of political parties even when they do not
support the party in power. Harassment of political parties constitutes a
violation of freedom of association.
Freedom of association under article 10 of the African Charter also
means that human rights organizations must be able to function
effectively, inter alia for the purpose of teaching human rights.
Freedom of association under article 10 further implies that Bar
Associations must be able to function freely and that there should be no
governmental interference with their self-governance.
Limitations on the exercise of the right to freedom of association
recognized in article 10 of the African Charter must not undermine the
fundamental human rights and freedoms guaranteed by national
constitutions or international legal standards.
It is a violation of the right to freedom of association recognized in article
10 of the African Charter to find a person guilty of a criminal offence
such as murder solely on the ground of that person’s membership of an
association.
4.4 Articles 15 and 16 of the American Convention
on Human Rights
Article 15 of the American Convention guarantees “the right to peaceful
assembly, without arms”. The words “without arms” seem redundant in that the
term
“peaceful” necessarily implies that there must be an absence of violence and
threats of
violence, including the carrying of weapons, which may, in themselves, be
considered
to constitute a threat of violence.
313International Pen and Others (on behalf of Ken Saro-Wiwa Jr. and Civil Liberties Organization) v. Nigeria,
Communications Nos. 137/94,
139/94, 154/96 and 161/97, decision adopted on 31 October 1998, para. 108 of the text of the decision as
published at the following web
site: http://www1.umn.edu/humanrts/africa/comcases/137-94_139/94_154-96_161-97.html
314Ibid., loc. cit.
The “right to associate freely” as guaranteed by article 16 covers all
dimensions of society such as the freedom to associate “for ideological, religious,
political, economic, labor, social, cultural, sports, or other purposes”. As made
clear by
the words “or other purposes”, this enumeration is simply indicative of the
purposes
for which a person must be allowed to associate freely with others.
The exercise of both the right to peaceful assembly and the right to associate
freely may be subjected to restrictions provided that they are “imposed in
conformity
with the law” (right of assembly) or “established by law” (freedom of association)
and
are “necessary in a democratic society, in the interest of national security, public
safety
or public order, or to protect public health or morals or the rights and freedoms
of
others”.315 Article 16(3) also allows “legal restrictions, including even
deprivation of
the exercise of the right of association, on members of the armed forces and the
police”
(emphasis added).
Articles 15 and 16 of the American Convention were at the centre of the case
of Baena Ricardo and Others v. Panama concerning Panamanian Law No. 25 of
14
December 1990, on the basis of which 270 workers were dismissed from their
work
after participating in a national work stoppage on 5December 1990. The
impugned law
granted the Executive and directors of autonomous and semi-autonomous
institutions
and State and municipal enterprises, among others, wide powers to dismiss civil
servants who took part in the organization of actions against democracy and the
constitutional order. Dismissal was to ensue regardless of whether the persons
concerned were members of, for instance, the boards of management of labour
unions
and associations of civil servants. It was for the Executive to decide which acts
were
contrary to democracy and the constitutional order for purposes of the
administrative
sanction of dismissal. The workers had also taken part in a demonstration for
labour
claims on 4 December 1990.316 The victims alleged violations of several articles
of the
American Convention, including articles 15 and 16.
With regard to the right to peaceful assembly, the Inter-American Court
accepted that Panama had not violated article 15 in the case of the 270 workers
submitting the complaint. The measures complained of had been due to the work
stoppage of 5 December 1990 which was considered to have violated democracy
and
the constitutional order, while the march of 4 December had taken place
“without any
interruption or restriction”. According to the Court, the letters of dismissal to the
workers concerned did not mention the march of 4 December 1990 but most of
them
declared the appointments invalid because the workers participated in the
organization
or execution of the work stoppage of 5 December.317
With regard to freedom of association as guaranteed by article 16 of the
American Convention, the Inter-American Court observed, inter alia, that Law No.
25
not only permitted the dismissal of labour union leaders but also abrogated
rights
granted to them under the Labour Code regarding the procedure to be followed
in the
event of dismissal of workers enjoying trade union privileges. Law No. 25 had
also
Lawyers 607
315The list of legitimate purposes is quoted from article 16; article 15 refers to “rights or freedoms of
others” rather than “rights
and freedoms of others”; emphasis added.
316I-A Court HR, Caso Baena Ricardo y Otros (270 trabajadores v. Panamá, sentencia de 2 de febrero de
2001, Serie C, No. 72; the Spanish
text used here can be found at the Court’s web site: www.corteidh.or.cr/serie_c/C_72_ESP.html, paras. 1 and
104.
317Ibid., paras. 148-150.
entered into force retroactively, thereby permitting the authorities to ignore
procedures
that should have been followed under the legislation in force when the events
occurred.
The resultant dismissal of a considerable number of trade union leaders
“seriously
affected” the organization and activities of the trade unions concerned and
thereby also
interfered with freedom of association for labour purposes.318 The Court therefore
had
to examine whether this interference could be justified on the basis of article
16(2) of
the Convention.
The Court first recalled its views on the notion of “laws”, by virtue of which
the existence of laws is not sufficient under the American Convention to render
restrictions on the enjoyment and exercise of rights and freedoms lawful; the
laws must
also be based on reasons of general interest.319 The Court then considered in
particular
the facts contained in the report and recommendations adopted by the ILO
Freedom
of Association Committee in Case 1569 (which had not been contradicted by the
Panamanian Government), according to which: (1) Law No. 25 was passed 15
days
after the occurrence of the facts at the origin of this case; (2) the authorities did
not
apply the existing norms regarding dismissal of workers; (3) the trade union
premises
and bank accounts were interfered with; and (4) numerous dismissed workers
were
trade union leaders.320 The Court concluded from the foregoing that it had not
been
shown either that the measures taken by the State were necessary to protect
“public
order” in the context of the relevant events or that the principle of
proportionality had
been respected. The measures taken were therefore not “necessary in a
democratic
society” as required by article 16(2) of the Convention so that article 16 had
been
violated in the case of the 270 named workers.321
4.5 Article 11 of the European Convention on
Human Rights
The right of every person “to freedom of peaceful assembly and to freedom of
association” is contained in article 11 of the European Convention, as is “the
right to
form and to join trade unions for the protection of his interests”. The restrictions
allowed on the exercise of these rights are exhaustively enumerated in article
11(2), and
must be “prescribed by law” and be “necessary in a democratic society” for one
or
more of the purposes specified therein. Moreover, the article “shall not prevent
the
imposition of lawful restrictions on the exercise of these rights by members of
the
armed forces, of the police or of the administration of the State”. In contrast to
article
16(2) of the American Convention, article 11(2) of the European Convention uses
the
word “restrictions” and not “deprivation”, which indicates that the substance of
the
right as such cannot be compromised. On the other hand, article 11(2) of the
European
Convention goes further in that it also refers to “the administration of the State”
in this
connection. A few examples from the jurisprudence of the European Court of
Human
321Ibid., paras. 172-173. The Court also concluded that Panama had violated the principles of legality and
prohibition of ex post
facto laws laid down in article 9 as well as articles 8(1), 8(2), 25 and 1(1) and 2 of the American Convention,
para. 214.
Rights will illustrate the meaning of the terms of article 11 of the European
Convention.
4.5.1 Freedom of association, trade unions and the closed shop
system
The case of Young, James and Webster v. the United Kingdom concerned three
former employees of the British Railways Board (“British Rail”) who were
dismissed
from their jobs for not being members of one of the three trade unions with
which
British Rail had concluded a “closed shop” agreement, which meant that, as from
the
conclusion of that accord, membership of one of the three unions became a
condition
of employment. The applicants alleged that this system violated article 11 of the
Convention. The question was thus whether article 11 “guarantees not only
freedom of
association, including the right to form and to join trade unions, in the positive
sense,
but also, by implication, a ‘negative right’ not to be compelled to join an
association or a
union”.322
However, the Court did not consider it necessary to answer this question in
the case before it, noting that “the right to form and to join trade unions is a
special
aspect of freedom of association [and] that the notion of a freedom implies some
measure of freedom of choice as to its exercise.”323 While thus refraining from
any
review of the closed shop system per se, the Court limited its examination “to
the
effects of that system on the applicants”. 324 It noted that after the conclusion of
the
agreement between British Rail and the three trade unions, the applicants had
the
choice of losing their work or joining one of the unions, something they refused
to do.
“As a result of their refusal to yield to what they considered to be unjustified
pressure,
they received notices terminating their employment. Under the legislation in
force at
the time ... their dismissal was ‘fair’ and, hence, could not found a claim for
compensation, let alone reinstatement.”325
The Court observed that, on the assumption that article 11 does not guarantee
the negative aspect of freedom of association on the same footing as the
positive
aspect, compulsion to join a particular trade union may not always be contrary to
the
Convention.
“However, a threat of dismissal involving loss of livelihood is a most
serious form of compulsion and, in the present case, it was directed against
persons engaged by British Rail before the introduction of any obligation
to join a particular trade union.
In the Court’s opinion, such a form of compulsion, in the circumstances of
the case, strikes at the very substance of the freedom guaranteed by Article
11. For this reason alone, there has been an interference with that freedom
as regards each of the three applicants.”326
Lawyers 609
322Eur. Court HR, Case of Young, James and Webster, judgment of 13 August 1981, Series A, No. 44, p. 21,
para. 51.
323Ibid., p. 21, para. 52.
324Ibid., p. 22, para. 53.
325Ibid., p. 22, para. 54.
326Ibid., pp. 22-23, para. 55.
Another facet of the case related to “the restriction of the applicants’ choice as
regards the trade unions which they could join of their own free volition”
because, as
observed by the Court, an individual does not enjoy the right to freedom of
association
if in reality the freedom of action or choice which remains available to him is
either
non-existent or so reduced as to be of no practical value.327 This issue was linked
to the
fact that Mr. Young and Mr.Webster objected to trade union policies and
activities and
that Mr. Young also objected to the political affiliations of two of the unions. This
meant that, in spite of its autonomous role, article 11 also had to be considered
in the
present case in the light of Articles 9 and 10 of the Convention:
“The protection of personal opinion afforded by Articles 9 and 10 in the
shape of freedom of thought, conscience and religion and of freedom of
expression is also one of the purposes of freedom of association as
guaranteed by Article 11. Accordingly, it strikes at the very substance of
this Article to exert pressure, of the kind applied to the applicants, in order
to compel someone to join an association contrary to his convictions.”328
The Court therefore had to examine whether the interference with the
applicants’ right to freedom of association could be justified as being
“necessary in a
democratic society” for any of the reasons set out in article 11(2) of the
Convention.
In this connection it observed:
“Firstly ‘necessary’ in this context does not have the flexibility of such
expressions as ‘useful’ or ‘desirable’… The fact that British Rail’s closed
shop agreement may in a general way have produced certain advantages is
therefore not of itself conclusive as to the necessity of the interference
complained of.
Secondly, pluralism, tolerance and broadmindedness are hallmarks of a
‘democratic society’…Although individual interests must on occasion be
subordinated to those of a group, democracy does not simply mean that
the views of a majority must always prevail: a balance must be achieved
which ensures the fair and proper treatment of minorities and avoids any
abuse of a dominant position. Accordingly, the mere fact that the
applicants’ standpoint was adopted by very few of their colleagues is again
not conclusive of the issue …before the Court.
Thirdly, any restriction imposed on a Convention right must be
proportionate to the legitimate aim pursued.”329
The Court concluded that “even making due allowance for a State’s ‘margin of
appreciation’ ... the restrictions complained of were not ‘necessary in a
democratic
society’ as required by paragraph 2 of Article 11.” It referred in particular to the
fact that
it had not been informed of any special reasons justifying the imposition of the
closed
shop system. Many similar systems did not require existing non-union employees
to
join a specific union and “a substantial majority even of union members
themselves
disagreed with the proposition that persons refusing to join a union for strong
reasons
should be dismissed from employment.”330
327Ibid., p. 23, para. 56.
328Ibid., pp. 23-24, para. 57.
330Ibid., pp. 25-26, paras. 64-65.
A similar issue arose in the case of Sigurjónsson v. Iceland, in which the
applicant,
a taxi driver, was compelled by law to join an organization called “Frami”, failing
which
he would lose his licence as a cab driver. The Court observed that “such a form
of
compulsion, in the circumstances of the case, strikes at the very substance of
the right
guaranteed by Article 11 and itself amounts to an interference with that right.”
Moreover, the case had to be considered in the light of articles 9 and 10 of the
Convention, since the applicant “objected to being a member of the association
in
question partly because he disagreed with its policy in favour of limiting the
number of
taxicabs and, thus, access to the occupation”.331
As in the Young, James and Webster case, the Court concluded that there had
been a violation of article 11. It accepted that the membership obligation was
“prescribed by law”( a law passed in 1989) and that this law pursued a
legitimate aim,
namely the protection of the “rights and freedoms of others”.332 However, was
it
“necessary in a democratic society”? The Government considered that it
was,
arguing that “membership constituted a crucial link between them and Frami in
that the
latter would not be able to ensure the kind of supervisory functions which it
performed
unless all the licence-holders within its area were members.”333
In the first place, the Court recalled “that the impugned membership
obligation was one imposed by law, the breach of which was likely to bring about
the
revocation of the applicant’s licence. He was thus subjected to a form of
compulsion
which ... is rare within the community of Contracting States and which, on the
face of it,
must be considered incompatible with Article 11.” While accepting that Frami
served
both the occupational interests of its members and the public interest, the Court
was
not convinced “that compulsory membership of Frami was required in order to
perform those functions”. In support of its view, it noted in particular that
“membership was by no means the only conceivable way of compelling the
license-holders to carry out such duties and responsibilities as might be
necessary” and
that it had not been established “that there was any other reason that would
have
prevented Frami from protecting its members’ occupational interests in the
absence of
the compulsory membership imposed on the applicant despite his opinions”.334
It followed that the reasons adduced by the Government, although they
could be considered relevant, were not sufficient to show that it was
“necessary” to
compel the applicant to be a member of Frami, on pain of losing his licence and
contrary to his own opinions. The measures complained of were consequently
“disproportionate to the legitimate aim pursued” and violated article 11.335
The right to form and to join trade unions recognized under article 11 of
the European Convention on Human Rights is a special aspect of
Lawyers 611
331Eur. Court HR, Case of Sigurdur A. Sigurjónsson v. Iceland, judgment of 30 June 1993, Series A, vol. 264,
pp. 16-17, paras. 36-37.
332Ibid., p. 17, para. 39.
333Ibid., p. 18, para. 40.
334Ibid., p. 18, para. 41.
335Ibid., pp. 18-19, para. 41.
The term “freedom” implies some measure of choice as to its exercise but
does not necessarily mean that compulsion to join a specific trade union is
always contrary to the European Convention on Human Rights.
An obligation to join a specific trade union on pain of dismissal involving
loss of livelihood is a form of compulsion that has been considered to
strike at the very substance of freedom of association as guaranteed by
article 11 of the European Convention. To be lawful, such interference
with the exercise of a person’s freedom of association must comply with
the restrictions laid down in article 11(2) of the Convention.
Although it is autonomous, article 11 must be considered in the light of
articles 9 and 10 of the Convention guaranteeing freedom of thought,
conscience, religion and expression. This means that, in ensuring respect
for the exercise of freedom of association and assembly, it is also relevant
to ensure respect for a person’s other fundamental freedoms.
4.5.2 Trade unions and collective agreements
In the Swedish Engine Drivers’ Union v. Sweden case, the applicant trade union
complained of the refusal by the Swedish Collective Bargaining Office to enter
into
collective agreements with it notwithstanding the fact that it did so with large
trade
union federations and, occasionally, with independent unions; according to the
applicant union, this refusal entailed a series of disadvantages and was also a
violation of
article 11 of the European Convention.336
It is noteworthy that the Convention “nowhere makes an express distinction
between the functions of a Contracting State as holder of public power and its
responsibilities as employer”. Article 11 is accordingly “binding upon the ‘State
as
employer’, whether the latter’s relations with its employees are governed by
public or
private law”.337 The Swedish Engine Drivers’ Union case neither concerned the
right for
trade unions to engage in collective bargaining nor the legal capacity of such
unions to
conclude collective agreements in the interest of its members, since these rights
were
granted under Swedish law; the case was instead limited to ascertaining whether
article
11(1) “requires the ‘State as employer’ to enter into any given collective
agreement with
a trade union representing certain of its employees whenever the parties are in
accord
on the substantive issues negotiated upon”.338
The Court then pointed out that article 11(1) “presents trade union freedom
as one form or a special aspect of freedom of association” but “does not secure
any
particular treatment of trade unions, or their members, by the State, such as the
right
that the State should conclude any given collective agreement with them”.
Moreover,
trade union freedoms are dealt with in article 6(2) of the European Social
Charter,
which “affirms the voluntary nature of collective bargaining and collective
agreements.
The prudence of the wording of Article 6 § 2 demonstrates that the Charter does
not
336Eur. Court HR, Swedish Engine Drivers’ Union Case v. Sweden, judgment of 6 February 1976, Series A,
No. 20, p. 13, para. 32.
337Ibid., p. 14, para 37.
338Ibid., pp. 14-15, paras. 38-39.
provide for a real right to have any such agreement concluded, even assuming
that the
negotiations disclose no disagreement on the issue to be settled.”339
As to the phrase “for the protection of his interest” contained in article 11(1)
of the European Convention, the Court stated that:
“These words, clearly denoting purpose, show that the Convention
safeguards freedom to protect the occupational interests of trade union
members by trade union action, the conduct and development of which
the Contracting States must both permit and make possible. In the opinion
of the Court, it follows that the members of a trade union have a right, in
order to protect their interests, that the trade union should be heard.
Article 11 § 1 certainly leaves each State a free choice of the means to be
used towards this end. While the concluding of collective agreements is
one of these means, there are others. What the Convention requires is that
under national law trade unions should be enabled, in conditions not at
variance with Article 11, to strive for the protection of their members’
interests .”340
No one disputed the fact that the Swedish Engine Drivers’ Union could
“engage in various kinds of activity vis-à-vis the Government”. The Court
concluded
that the fact alone that the Collective Bargaining Office had in principle refused
during
the past few years to enter into collective agreements with the applicant union
did not
constitute a breach of article 11(1). Lastly, the Office’s policy of restricting the
number
of organizations with which collective agreements were to be concluded was
“not on its
own incompatible with trade union freedom.”341
The Contracting States to the European Convention on Human Rights
must also respect freedom of association as laid down in article 11(1)
when they act as employer, regardless of whether their relations with
employees are governed by public or private law.
The Convention requires that, under national law, trade unions should
be able, in conditions not at variance with the terms of article 11, to
strive for the protection of their members’ interests. This means that trade
unions should be heard, although the Contracting States are free to
choose
the means whereby this end is obtained.
The conclusion of collective agreements is one of several means of
allowing
trade unions to be heard. It is not incompatible with the trade union
freedoms guaranteed by article 11 of the European Convention for a
State as employer to limit the conclusion of collective agreements to a
certain number of trade unions provided that all unions are able to strive
for the protection of their members’ interests in accordance with article
11.
Lawyers 613
339Ibid., p. 15, para. 39.
340Ibid., pp. 15-16, para. 40.
341Ibid., p. 16, paras. 41-42. For a similar case see Eur. Court HR, National Union of Belgian Police Case,
judgment of 27 October 1975,
Series A, No. 19.
4.5.3 Freedom of association and political parties
In recent years a number of important cases involving the dissolution of
political parties have been considered by the European Court of Human Rights
under
article 11 of the European Convention. Selected examples will illustrate the
extent and
limits of the right to form political parties at the European level.
The leading case in this regard is that of the United Communist Party of Turkey
and
Others v. Turkey, which concerned the dissolution by the Turkish Constitutional
Court
of the United Communist Party (TBKP) entailing, ipso jure, the liquidation of the
party
and the transfer of its assets to the Treasury.
The Constitutional Court of Turkey held, inter alia, that “the mere fact that a
political party included in its name a word prohibited by section 96(3) of Law No.
2820"
on the regulation of the political parties, i.e. the term “communist”, was
sufficient to
justify its dissolution. Furthermore, the party’s constitution and programme
referred to
two nations, the Kurdish nation and the Turkish nation. “But it could not be
accepted
that there were two nations within the Republic of Turkey, whose citizens,
whatever
their ethnic origin, had Turkish nationality. In reality, the proposals in the party
constitution covering support for non-Turkish languages and cultures were
intended to
create minorities, to the detriment of the unity of the Turkish nation.” Such
objectives
“which encouraged separatism and the division of the Turkish nation were
unacceptable and justified dissolving the party concerned”.342
In reply to the submission of the Turkish Government that the reference to
trade unions in article 11 is not applicable to political parties, the European Court
of
Human Rights emphasized that it was and that “the conjunction ‘including’
clearly
shows that trade unions are but one example among others of the form in which
the
right to freedom of association may be exercised.” Even more persuasive than
the
wording of article 11 was, in the Court’s view,
“the fact that political parties are a form of association essential to the
proper functioning of democracy. In view of the importance of democracy
in the Convention system ... there can be no doubt that political parties
come within the scope of Article 11.”343
In response to further arguments by the Government, the Court stated in
particular that “an association, including a political party, is not excluded from
the
protection afforded by the Convention simply because its activities are regarded
by the
national authorities as undermining the constitutional structures of the State and
calling
for the imposition of restrictions.”344 “However, it does not follow [from article
11]
that the authorities of a State in which an association, through its activities,
jeopardises
that State’s institutions are deprived of the right to protect those institutions.”
According to the Court, “some compromise between the requirements of
defending
democratic society and individual rights is inherent in the system of the
Convention”.
342Eur. Court HR, Case of the United Communist Party of Turkey and Others v. Turkey, judgment of 30
January 1998, Reports 1998-I,
pp. 9-10, para.10.
343Ibid., pp. 16-17, paras. 24-25.
344Ibid., p. 17, para. 27.
However, for there to be a compromise of that sort any intervention by the
authorities
must be in accordance with paragraph 2 of Article 11.345
The Court then accepted that the dissolution of TBKP constituted an
interference with the right to freedom of association within the meaning
of article
11(1) of the European Convention in respect of all three applicants, i.e. the party
itself
and two of its founders and leaders who were banned from discharging similar
responsibilities in any other political grouping.346 In examining whether this
interference could be justified under article 11(2) of the Convention, the Court
accepted that the interference was “prescribed by law”, namely by various
provisions of the Turkish Constitution and the aforementioned Law No. 2820. It
also
considered that the dissolution of TBKP “pursued at least one of the
‘legitimate
aims’ set out in Article 11: the protection of ‘national security’”.347 In
considering
the final question, whether the interference was also “necessary in a
democratic
society”, the Court synthesized and expanded its general principles relating to
the
concept of “a democratic society”. In view of its importance at the European
level,
these principles will be quoted in extenso:
“42. The Court reiterates that notwithstanding its autonomous role and
particular sphere of application, Article 11 must also be considered in the
light of Article 10. The protection of opinions and the freedom to express
them is one of the objectives of the freedoms of assembly and association
as enshrined in Article 11 ...
43. That applies all the more in relation to political parties in view of
their essential role in ensuring pluralism and the proper functioning of
democracy ...
As the Court has said many times, there can be no democracy without
pluralism. It is for that reason that freedom of expression as enshrined in
Article 10 is applicable, subject to paragraph 2, not only to ‘information’ or
‘ideas’ that are favourably received or regarded as inoffensive or as amatter
of indifference, but also to those that offend, shock or disturb ... The fact
that their activities form part of a collective exercise of freedom of
expression in itself entitles political parties to seek the protection of
Articles 10 and 11 of the Convention.
44. In the Informationsverein Lentia and Others v. Austria judgment
the Court described the State as the ultimate guarantor of the principle of
pluralism ... In the political sphere that responsibility means that the State is
under the obligation, among others, to hold, in accordance with Article 3
of Protocol No. 1, free elections at reasonable intervals by secret ballot
under conditions which will ensure the free expression of the opinion of
the people in the choice of the legislature. Such expression is inconceivable
without the participation of a plurality of political parties representing the
different shades of opinion to be found within a country’s population. By
relaying this range of opinion, not only within political institutions but also
– with the help of the media – at all levels of social life, political parties
Lawyers 615
345Ibid., p. 18, para. 32.
346Ibid., p. 19, para. 36.
make an irreplaceable contribution to political debate, which is at the very
core of the concept of a democratic society ...
45. Democracy is without doubt a fundamental feature of the European
public order ...
That is apparent, firstly, from the preamble to the Convention, which
establishes a very clear connection between the Convention and
democracy by stating that the maintenance and further realisation of
human rights and fundamental freedoms are best ensured on the one hand
by an effective political democracy and on the other by a common
understanding and observance of human rights ... The Preamble goes on to
affirm that European countries have a common heritage of political
tradition, ideals, freedom and the rule of law. The Court has observed that
in that common heritage are to be found the underlying values of the
Convention ...; it has pointed out several times that the Convention was
designed to maintain and promote the ideals and values of a democratic
society...
In addition, Articles 8, 9, 10 and 11 of the Convention require that
interference with the exercise of the rights they enshrine must be assessed
by the yardstick of what is ‘necessary in a democratic society’. The only
type of necessity capable of justifying an interference with any of those
rights is, therefore, one which may claim to spring from ‘democratic
society’. Democracy thus appears to be the only political model
contemplated by the Convention and, accordingly, the only one
compatible with it.
The Court has identified certain provisions of the Convention as being
characteristic of democratic society. Thus in its very first judgment it held
that in a ‘democratic society within the meaning of the Preamble and the
other clauses of the Convention’, proceedings before the judiciary should
be conducted in the presence of the parties and in public and that that
fundamental principle was upheld in Article 6 of the Convention ... In a
field closer to the one concerned in the instant case, the Court has on many
occasions stated, for example, that freedom of expression constituted one
of the essential foundations of a democratic society and one of the basic
conditions for its progress and each individual’s self-fulfilment ... whereas
in the Mathieu-Mohin and Clerfayt judgment ... it noted the prime
importance of Article 3 of Protocol No. 1, which enshrines a characteristic
principle of an effective political democracy ...
46. Consequently, the exceptions set out in Article 11 are, where political
parties are concerned, to be construed strictly; only convincing and
compelling reasons can justify restrictions on such parties’ freedom of
association. In determining whether a necessity within the meaning of
Article 11 § 2 exists, the Contracting States have only a limited margin of
appreciation, which goes hand in hand with rigorous European
supervision embracing both the law and the decisions applying it, including
those given by independent courts. The Court has already held that such
scrutiny was necessary in a case concerning a Member of parliament who
had been convicted of proffering insults; ... such scrutiny is all the more
necessary where an entire political party is dissolved and its leaders banned
from carrying on any similar activity in the future.
47. When the Court carries out its scrutiny, its task is not to substitute its
own view for that of the relevant national authorities but rather to review
under Article 11 the decisions they delivered in the exercise of their
discretion. This does not mean that it has to confine itself to ascertaining
whether the respondent State exercised its discretion reasonably, carefully
and in good faith; it must look at the interference complained of in the light
of the case as a whole and determine whether it was ‘proportionate to the
legitimate aim pursued’ and whether the reasons adduced by the national
authorities to justify it are ‘relevant and sufficient’. In doing so, the Court
has to satisfy itself that the national authorities applied standards which
were in conformity the principles embodied in Article 11, and, moreover,
that they based their decisions on an acceptable assessment of the relevant
facts.”348
The Court then applied these principles to the United Communist Party of Turkey
and Others case. It noted that, since the dissolution of the party had been
ordered before
it even had been able to start its activities, it was exclusively based on its
constitution
and programme, which contained “nothing to suggest that they did not reflect
the
party’s true objectives and its leaders’ true intentions”. Like the Constitutional
Court,
the European Court therefore took those documents “as a basis for assessing
whether
the interference in question was necessary”.349
With regard to the first ground invoked by the Constitutional Court in
favour of the dissolution, namely that the TBKP included the word
“communist” in
its name, the European Court considered “that a political party’s choice of name
cannot
in principle justify a measure as drastic as dissolution, in the absence of other
relevant
and sufficient circumstances. In this connection, it must be noted, firstly, that ...
the
provisions of the Criminal Code making it a criminal offence to carry on political
activities inspired, in particular, by communist ideology were repealed by Law
no. 3713
on the prevention of terrorism. The Court also [attached] much weight to the
Constitutional Court’s finding that the TBKP was not seeking, in spite of its name,
to
establish the domination of one class over the others, and that, on the contrary,
it
satisfied the requirements of democracy, including political pluralism, universal
suffrage and freedom to take part in politics.” Accordingly, “in the absence of
any
concrete evidence to show that in choosing to call itself ‘communist’, the TBKP
had
opted for a policy that represented a real threat to Turkish society or the Turkish
State,
the Court [could not] accept that the submission based on the party’s name, by
itself,
entail the party’s dissolution.”350
As to the second submission accepted by the Constitutional Court in
support of the dissolution of the TBKP, namely that it “sought to promote
separatism
and the division of the Turkish nation”, the European Court observed that,
although
the party referred in its programme “to the Kurdish ‘people’ and ‘nation’ and
Kurdish
‘citizens’”, it neither described them as a “minority”, nor made any claim “other
than
for recognition of their existence – for them to enjoy special treatment or rights,
still
less a right to secede from the rest of the Turkish population. On the contrary its
Lawyers 617
348Ibid., pp. 20-22, paras. 42-47.
349Ibid., p. 25, para. 51.
350Ibid., p. 26, para. 54.
programme [stated]: ‘The TBKP will strive for a peaceful, democratic and fair
solution
of the Kurdish problem, so that the Kurdish and Turkish peoples may live
together of
their free will within the borders of the Turkish Republic, on the basis of equal
rights
and with a view to democratic restructuring founded on their common
interests’.”
“The TBPK also said in its programme: ‘A solution to the Kurdish problem will
only be
found if the parties concerned are able to express their opinions freely, if they
agree not
to resort to violence in any form in order to resolve the problem and if they are
able to
take part in politics with their own national identity’.”351
The European Court went on to state that it considered one of the principal
characteristics of democracy to be
“the possibility it offers of resolving a country’s problems through
dialogue, without recourse to violence, even when they are irksome.
Democracy thrives on freedom of expression. From that point of view,
there can be no justification for hindering a political group solely because it
seeks to debate in public the situation of part of the State’s population and
to take part in the nation’s political life in order to find, according to
democratic rules, solutions capable of satisfying everyone concerned. To
judge by its programme, that was indeed the TBKP’s objective in this
area.”352
Although it could not be ruled out “that a party’s political programme may
conceal objectives and intentions different from the ones it proclaims”, this was
an
issue that could not be verified in the case before the Court, since the party had
not
been active but dissolved immediately after its creation. “It was thus penalised
for
conduct relating solely to the exercise of freedom of expression.”353
Although the Court was finally also “prepared to take into account the
background of cases before it, in particular the difficulties associated with the
fight
against terrorism ... it [found] no evidence to enable it to conclude, in the
absence of any
activity by the TBKP, that the party bore any responsibility for the problems
which
terrorism poses in Turkey.”354
It followed that “a measure as drastic as the immediate and permanent
dissolution of the TBKP, ordered before its activities had even started and
coupled with
a ban barring its leaders from discharging any other political responsibility, [was]
disproportionate to the aim pursued and consequently unnecessary in a
democratic
society.”355 The Court, sitting as a Grand Chamber, thus unanimously decided
that
article 11 of the European Convention had been violated.356
*****
351Ibid., pp. 26-27, paras. 55-56.
352Ibid., p. 27, para. 57.
353Ibid., p. 27, para. 58.
354Ibid., p. 27, para. 59.
355Ibid., pp. 27-28, para. 61.
356Ibid., p. 31 as read in conjunction with p. 5.
The general principles applied in the United Communist Party of Turkey case
have
subsequently been confirmed in other similar cases such as that of the Socialist
Party and
Others v. Turkey. This party, the SP, had also been dissolved by decision of the
Constitutional Court and its leaders banned from holding similar office in any
other
political party. Its assets had also been liquidated and transferred to the
Treasury.357
Unlike in the abovementioned case, however, the decision of the
Constitutional
Court was based only on the political activities of the SP and not on its
constitution or programme. The Constitutional Court had noted, inter alia,
that, by
distinguishing two nations, i.e. the Kurdish and Turkish nations, and advocating a
federation to the detriment of the unity of the Turkish nation and the territorial
integrity of the State, the aim of the SP was “similar to that of terrorist
organisations”.
As it “promoted separatism and revolt its dissolution was justified”.358
The European Court therefore had to examine the statements of the SP to
decide whether its dissolution was justified. In other words, it had to satisfy itself
“that
the national authorities based their decisions on an acceptable assessment of
the
relevant facts”.359
The Court analysed the relevant statements and found nothing in them that
could be considered “a call for the use of violence, an uprising or any other form
of
rejection of democratic principles” – on the contrary. As for the distinction made
between the Kurdish and the Turkish nations, the Court noted that “the
statements put
forward a political programme with the essential aim being the establishment, in
accordance with democratic rules, of a federal system in which Turks and Kurds
would
be represented on an equal footing and on a voluntary basis.” With regard to the
references to “self-determination” and the right to “secede” of the Kurdish
nation, the
Court observed in particular that “read in their context, the statements using
these
words [did] not encourage secession from Turkey but [sought] rather to stress
that the
proposed federal system could not come about without the Kurds’ freely given
consent, which should be expressed through a referendum.”360 Moreover,
“the fact that such a political programme is considered incompatible with
the current principles and structures of the Turkish State does not make it
incompatible with the rules of democracy. It is of the essence of democracy
to allow diverse political programmes to be proposed and debated, even
those that call into question the way a State is currently organised, provided
that they do not harm democracy itself.”361
Furthermore, in the absence of concrete actions belying the sincerity of the
statements, that sincerity should not be doubted. In the view of the European
Court,
“the SP was thus penalised for conduct relating solely to the exercise of freedom
of
expression.”362
Lawyers 619
357Eur. Court HR, Case of the Socialist Party and Others v. Turkey, judgment of 25 May 1998, Reports 1998-
III, p. 1250, para. 24, and
p. 1258, para. 51.
358Ibid., p. 1256, para. 43.
359Ibid, p. 1256, para. 44.
360Ibid., pp. 1256-1257, paras. 46-47.
361Ibid., p. 1257, para. 47.
362Ibid., pp. 1257-1258, para. 48.
Emphasizing “the essential role of political parties in the proper functioning
of democracy”, the Court stated that the exceptions set out in article 11 were to
be
“construed strictly” where political parties are concerned. Applying
correspondingly
“rigorous European supervision”, the Court held that radical measures such as
those
taken in the case before it “may only be applied in the most serious
cases”.363 But the
impugned statements by the party leader “did not appear to it to call into
question the
need for compliance with democratic principles and rules” nor had it been
established
“how, in spite of the fact that in making them their author declared attachment
to
democracy and expressed rejection of violence, the statements in issue could be
considered to have been in any way responsible for the problems which
terrorism poses
in Turkey”.364 It followed that article 11 of the Convention had been violated,
since
“the dissolution of the SP was disproportionate to the aim pursued and
consequently
unnecessary in a democratic society.”365 This finding was reached by a
unanimous
Court sitting as a Grand Chamber.366
It is noteworthy that in both of the preceding cases the Court also considered
that there was no need to bring article 17 of the Convention into play as
suggested by
the Government. This was so because there was no evidence warranting the
conclusion
that the Convention had been relied on to engage in activities or perform acts
aimed at
the destruction of any of the rights and freedoms set forth in it.367
*****
The outcome was different, however, in the case of Refah Partisi (Prosperity
Party) and Others v. Turkey, which concerned Refah’s dissolution and the
prohibition of
its leaders from holding office in any other political party. This case is
important in
that it wasmade clear that a political party that wants to introduce a
plurality of
legal systems, that does not take prompt action against party members
who call
for the use of force as a political weapon and that shows disrespect for
political
opponents cannot count on the protection of the Convention system.
In examining whether this measure could be justified under article 11(2) of the
Convention, the European Court accepted that it was “prescribed by law” (the
Constitution and Law No. 2820 on the regulation of political parties). In view of
“the
importance of the principle of secularism for the democratic system in Turkey”,
the
363Ibid., p. 1258, paras. 50-51; emphasis added.
364Ibid., pp. 1258-1259, para. 52.
365Ibid., p. 1259, para. 54.
366Ibid., p. 1262 as read in conjunction with p. 1236.
367Ibid., p. 1259, para. 53, and Eur. Court HR, Case of the United Communist Party of Turkey and Others v.
Turkey, judgment of 30 January
1998, Reports 1998-I, p. 27; para. 60. For other cases raising similar issues against Turkey, see Eur. Court
HR, Case of Freedom and
Democracy Party (ÖZDEP) v. Turkey, judgment of 8 December 1999, Reports 1999-VIII, p. 293 and Eur.
Court HR, Case of Yazar, Karatas,
Aksoy and the People’s Labour Party (HEP) v. Turkey, judgment of 9 April 2002; for the text see the Court’s
web site:
http://hudoc.echr.coe.int/hudoc. Article 11 was violated in these two cases as well.
Article 17 of the Convention reads: “Nothing in this Convention may be interpreted as implying for any
State, group or
person any right to engage in any activity or perform any act aimed at the destruction of any of the rights
and freedoms set forth
herein or at their limitation to a greater extent than is provided for in the Convention.”
Similar provisions are contained in article 5(1) of the International Covenant on Civil and Political Rights and
article 29(a) of
the American Convention on Human Rights.
Court also considered “that Refah’s dissolution pursued a number of the
legitimate
aims listed in Article 11, namely protection of national security and
public
safety, prevention of disorder or crime and protection of the rights and
freedoms
of others.”368
With regard to the notion of being “necessary in a democratic society”, the
Court drew attention to the following general principles, in which it further
elaborated
its views on the role of democracy and the rule of law in a system for the
protection of
human rights:
“43. The European Convention on Human Rights must be understood
and interpreted as a whole. Human rights form an integrated system for the
protection of human dignity; in that connection, democracy and the rule of
law have a key role to play.
Democracy requires that people should be given a role. Only institutions
created by and for the people may be vested with the powers and authority
of the State; statute law must be interpreted and applied by an independent
judicial power. There can be no democracy where the people of a State,
even by a majority decision, waive their legislative and judicial powers in
favour of an entity which is not responsible to the people it governs,
whether it is secular or religious.
The rule of law means that all human beings are equal before the law, in
their rights as in their duties. However, legislation must take account of
differences, provided that distinctions between people and situations have
an objective and reasonable justification, pursue a legitimate aim and are
proportionate and consistent with the principles normally upheld by
democratic societies. But the rule of law cannot be said to govern a secular
society when groups of persons are discriminated against solely on the
ground that they are of a different sex or have different political or religious
beliefs. Nor is the rule of law upheld where entirely different legal systems
are created for such groups.”369
Referring to its judgment in the United Communist Party of Turkey case, the
Court reaffirmed its view that “democracy is without doubt a fundamental
feature of
the ‘European public order’” and that “one of the principal characteristics of
democracy [is] the possibility it offers of resolving a country’s problems through
dialogue, without recourse to violence, even when they are irksome.”370 It
therefore
took the view that
“a political party may campaign for a change in the law or the legal and
constitutional basis of the State on two conditions: (1) the means used to
that end must in every respect be legal and democratic; (2) the change
proposed must itself be compatible with fundamental democratic
principles. It necessarily follows that a political party whose leaders incite
recourse to violence, or propose a policy which does not comply with one
Lawyers 621
368Eur. Court HR, Case of Refah Partisi (Prosperity Party) and Others v. Turkey, judgment of 31 July 2001;
the text used is the unedited text
found at the Court’s web site, http://hudoc.echr.coe.int/, paras. 39 and 42; emphasis added.
369Ibid., para. 43.
370Ibid., paras. 45-46.
or more of the rules of democracy or is aimed at the destruction of
democracy and infringements of the rights and freedoms afforded under
democracy cannot lay claim to the protection of the Convention against
penalties imposed for those reasons.”371
The Court also reiterated that the right to freedom of thought, conscience and
religion in article 9 of the Convention is “one of the foundations of a ‘democratic
society’ within the meaning of the Convention”. It added that “in democratic
societies,
in which several religions coexist within one and the same population, it may be
necessary to place restrictions on this freedom in order to reconcile the interests
of the
various groups and ensure that everyone’s beliefs are respected ... The State’s
role as the
neutral and impartial organiser of the practising of the various religions,
denominations
and beliefs is conducive to religious harmony and tolerance in a democratic
society.”372
To illustrate this view, the Court recalled its jurisprudence, according to which
“in a democratic society, the freedom to manifest a religion may be
restricted in order to ensure the neutrality of the public education service,
an objective contributing to protection of the rights of others, order and
public safety ... Similarly, measures taken in secular universities to ensure
that certain fundamentalist religious movements do not disturb public
order or undermine the beliefs of others do not constitute violations of
Article 9 ... The Court has likewise held that preventing aMuslim opponent
of the Algerian Government from spreading propaganda within Swiss
territory was necessary in a democratic society for the protection of
national security and public safety.”373
With regard to the situation in Turkey, the Court confirmed that “the
principle of secularism ... is undoubtedly one of the fundamental principles of the
State,
which are in harmony with the rule of law and respect for human rights. Any
conduct
which fails to respect that principle cannot be accepted as being part of the
freedom to
manifest one’s religion and is not protected by Article 9 of the Convention.”374
With regard to the specific case of Refah, the Government submitted that the
dissolution of the party “had been a preventive measure to protect democracy”
since
the party “had ‘an actively aggressive and belligerent attitude to the established
order’
and was making ‘a concerted attempt to prevent it from functioning properly’ so
that it
could then destroy it”.375 The applicants, for their part, denied that they had
challenged
the “vital importance of the principle of secularism” for Turkey. The party “had
been in
power perfectly legally ... from June 1996 to July 1997. The second applicant ...
had
been Prime Minister during the same period.”376
In assessing the necessity of the dissolution of Refah, the European Court
noted that the parties before it agreed “that preserving secularism is necessary
for
protection of the democratic system in Turkey. However, they did not agree
about the
371Ibid., para. 47.
372Ibid., paras. 49-51.
373Ibid., para. 51.
374Ibid., para. 52.
375Ibid., para. 63.
376Ibid., paras. 54-55.
content, interpretation and application of the principle of secularism.”377 As in the
Socialist Party and Others case, the Court based its assessment on the
declarations and
policy statements of Refah’s chairman and leaders and not on the constitution
and
programme of the party. These statements, which were considered by the
Constitutional Court to infringe the principle of secularism, fell into the following
three
categories:
_ “those which tended to show that Refah intended to set up a plurality of legal
systems, introducing discrimination on the grounds of belief”;
_ “those which tended to show that Refah wanted to apply sharia to the Muslim
community”; and
_ “those based on references made by Refah members to jihad (holy war) as a
political
method”.378
With regard to the first category, the Court agreed with the Government that
“Refah’s proposal that there should be a plurality of legal systems would
introduce into
all legal relationships a distinction between individuals grounded on religion,
would
categorise everyone according to his religious beliefs and would allow him rights
and
freedoms not as an individual but according to his allegiance to a religious
movement.
The Court [took] the view that such a societal model cannot be considered
compatible
with the Convention system, for two reasons.”
“Firstly, it would do away with the State’s role as the guarantor of
individual rights and freedoms and the impartial organiser of the practice
of the various beliefs and religions in a democratic society, since it would
oblige individuals to obey, not rules laid down by the State in the exercise
of its above-mentioned functions, but static rules of law imposed by the
religion concerned. But the State has a positive obligation to ensure that
everyone within its jurisdiction enjoys in full, and without being able to
waive them, the rights and freedoms guaranteed by the Convention…
Secondly, such a system would undeniably infringe the principle of
non-discrimination between individuals as regards their enjoyment of
public freedoms, which is one of the fundamental principles of democracy.
A difference in treatment between individuals in all fields of public and
private law according to their religion or beliefs manifestly cannot be
justified under the Convention, and more particularly Article 14 thereof,
which prohibits discrimination. Such a difference in treatment cannot
maintain a fair balance between, on the one hand, the claims of certain
religious groups who wish to be governed by their own rules and on the
other the interest of society as a whole, which must be based on peace and
on tolerance between the various religions and beliefs.”379
With regard to the second category of statements, namely those relating to the
introduction of sharia, Islamic law, as the ordinary law and the law applicable to
the
Muslim community, the Court considered that:
Lawyers 623
378Ibid., para. 68.
“sharia, which faithfully reflects the dogmas and divine rules laid down by
religion, is stable and invariable. Principles such as pluralism in the political
sphere or the constant evolution of public freedoms have no place in it.
The Court notes that, when read together, the offending statements, which
contain explicit references to the introduction of sharia, are difficult to
reconcile with the fundamental principles of democracy, as conceived in
the Convention taken as a whole. It is difficult to declare one’s respect for
democracy and human rights while at the same time supporting a regime
based on sharia, which clearly diverges from Convention values,
particularly with regard to its criminal law and criminal procedure, its rules
on the legal status of women and the way it intervenes in all spheres of
private and public life in accordance with religious precepts. In addition,
the statements concerning the desire to found a ‘just order’ or the ‘order of
justice’ or ‘God’s order’, when read in their context, and even though they
lend themselves to various interpretations, have as their common
denominator the fact that they refer to religious or divine rules in order to
define the political regime advocated by the speakers. They reveal
ambiguity about those speakers’ attachment to any order not based on
religious rules. In the Court’s view, a political party whose actions seem to
be aimed at introducing sharia in a State party to the Convention can hardly
be regarded as an association complying with the democratic ideal that
underlies the whole of the Convention.”380
The Court considered, furthermore, that “taken separately, the policy
statements made by Refah’s leaders particularly on the question of Islamic
headscarves
or organising working hours in the public sector to accommodate prayers, and
some of
their acts, such as the visit of Mr Kazan, then Minister of Justice, to a member of
his
party charged with inciting hatred on the ground of religious discrimination, or
the
reception given by Mr Erbakan to the leaders of the various Islamic movements,
did
not constitute an imminent threat to the secular regime in Turkey. However, the
Court
[found] persuasive the Government’s argument that these acts and policy
statements
were consistent with Refah’s unavowed aim of setting up a political regime
based on
sharia.”381
With regard to the third category of statements, namely those concerning the
concept of jihad, the Court stated that, while it was true “that Refah’s leaders did
not, in
government documents, call for the use of force and violence as a political
weapon,
they did not take prompt practical steps to distance themselves from those
members of
Refah who had publicly referred with approval to the possibility of using force
against
politicians who opposed them. Consequently, Refah’s leaders did not dispel the
ambiguity of these statements about the possibility of having recourse to violent
methods in order to gain power and retain it.”382
With regard to specific remarks made by a Member of Parliament for the
province of Ankara, which “revealed deep hatred for those he considered to be
opponents of an Islamist regime”, the Court held that:
380Ibid., para. 72.
381Ibid., para. 73.
382Ibid., para. 74.
“where the offending conduct reaches a high level of insult and comes
close to a negation of the freedom of religion of others it loses the right to
society’s tolerance.”383
The Court concluded, accordingly, that “the offending remarks and policy
statements made by Refah’s leaders [formed] a whole and [gave] a fairly clear
picture of
a model of State and society organised according to religious rules, which was
conceived and proposed by Refah.” Moreover, “Refah’s political aims were
neither
theoretical nor illusory, but achievable” in the light of the large number of
Members of
Parliament they had at the time of the party’s dissolution (almost one third of the
seats
in the Turkish Grand National Assembly) and past experience which had shown
that
political movements based on religious fundamentalism had been able to seize
power.384
Given all these considerations, the Court concluded that
“the penalty imposed on the applicants may reasonably be considered to
have met a ‘pressing social need’, in so far as Refah’s leaders, under the
pretext that they were redefining the principle of secularism, had declared
their intention of setting up a plurality of legal systems and introducing
Islamic law (sharia), and had adopted an ambiguous stance with regard to
the use of force to gain power and retain it. It takes the view that, even
though the margin of appreciation left to States must be a narrow one
where the dissolution of political parties is concerned, since the pluralism
of ideas and parties is itself an inherent part of democracy, a State may
reasonably forestall the execution of such a policy, which is incompatible
with the Convention’s provisions, before an attempt is made to implement
it through concrete steps that might prejudice civil peace and the country’s
democratic regime.”385
Lastly, in deciding whether the dissolution of Refah was proportionate to the
legitimate aim pursued, the Court stated
“that the dissolution of a political party accompanied by a temporary ban
prohibiting its leaders from exercising political responsibilities was a
drastic measure and that measures of such severity might be applied only in
the most serious cases ... In the present case, it has just found that the
interference in question met a ‘pressing social need’. It should also be
noted that after Refah’s dissolution, only five of its MPs (including the
applicants) temporarily forfeited their parliamentary office and their role as
leaders of a political party. The 152 remaining MPs continued to sit in
parliament and pursued their political careers normally. Moreover, the
applicants did not allege that Refah or its members had sustained
considerable pecuniary damage on account of the transfer of their assets to
the Treasury. The Court considers in that connection that the nature and
severity of the interference are also factors to be taken into account when
assessing its proportionality.”386
Lawyers 625
383Ibid., para. 75.
384Ibid., paras. 76-77.
385Ibid., para. 81.
386Ibid., para. 82.
The Court was thus satisfied that the interference complained of “was not
disproportionate to the legitimate aims pursued”. It followed that article 11 had
not
been violated.387 This decision was taken by a Chamber of the Court with a
majority of
four votes to three.
Democracy is a fundamental feature of the European public order and
the only political model compatible with the European Convention on
Human Rights.
There is no democracy where the people of a State, even by majority
decision, may waive their legislative and judicial powers in favour of an
entity, be it secular or religious, that is not responsible to the people it
governs.
In a democratic society, the State is the ultimate guarantor of the
principle of pluralism. It is also the guarantor of individual rights and
freedoms and the impartial organizer of the practice of the various beliefs
and religions in society. This means that the State must ensure that every
person within its jurisdiction enjoys fully the rights and freedoms
guaranteed by the Convention. These rights and freedoms cannot be
waived by anybody.
The rule of law has a key role to play in a democratic society. This
means, for instance, that all human beings are equal before the law, in
their rights and in their duties, and that there must therefore be no
discrimination between them.
Political parties are a form of association essential to a democratic society
and are protected by article 11 of the European Convention on Human
Rights.
The right to freedom of association of political parties must also be
considered in the light of the right to freedom of religion, thought, opinion
and expression as guaranteed by articles 9 and 10 of the European
Convention. This is because of the essential role played by political parties
in ensuring pluralism and a functioning democracy.
In view of the important role played by political parties in a democratic
society, only convincing and compelling reasons can justify restrictions on
their freedom of association. This means that the Contracting States have
only a narrow margin of appreciation in deciding on the necessity of a
restriction on the exercise of this right and that the corresponding
European supervision is rigorous. Any restrictions on the exercise of the
rights contained, inter alia, in articles 9 to 11 of the Convention must, in
other words, spring from the pressing social needs of a democratic
constitutional order.
387Ibid., paras. 83-84.
One of the principal characteristics of a democracy is also the possibility it
offers of resolving a country’s problems through dialogue and without
recourse to violence. Democracy thrives on a generously understood and
applied freedom of expression. There cannot therefore be any justification
for not allowing political parties to seek public debate on issues of general
interest as long as they do so in accordance with democratic rules.
The fact that a political party’s constitution and programme may be
considered incompatible with the principles and structures of a
Contracting State does not make it incompatible with the rules of
democracy as understood by the European Convention on Human
Rights.
Political parties which, in their constitutions, programmes or activities,
seek to introduce a plurality of legal systems, profess or fail to disavow
violence for political aims, and show disrespect and hatred for political
opponents will not enjoy protection of freedom of association as
guaranteed
by article 11 of the European Convention on Human Rights.
4.5.4 A lawyer’s right to freedom of assembly
The right to freedom of assembly was at issue in the case of Ezelin v. France, in
which a disciplinary sanction in the form of a reprimand was imposed on the
applicant,
who was a lawyer (“avocat”), for having participated in a demonstration against
two
court decisions in response to a call by the Trade Union of the Guadeloupe Bar,
of
which the applicant was Vice-Chairman at the time. The demonstration turned
unruly,
although the applicant himself was not involved in any violent incident. The
sanction
was imposed on him “because he had not dissociated himself from the unruly
incidents
which occurred during the demonstration”. He argued before the European Court
that
his rights under articles 10 and 11 of the Convention had been violated.388
The Court noted at the outset that, “notwithstanding its autonomous role and
particular sphere of application, Article 11 must, in the present case, also be
considered in
the light of Article 10 [since the] protection of personal opinions, secured by
Article 10, is
one of the objectives of freedom of peaceful assembly as enshrined in Article
11.”389
The Court then accepted that the measure complained of was “prescribed by
law”, namely the Decree of 9 June 1972 regulating the profession of avocat,
implementing the Act of 31 December 1971 reforming certain court and legal
professions, and that it was imposed in pursuit of a legitimate aim, i.e. the
“prevention
of disorder”.390 But was it necessary in a democratic society for this
legitimate
purpose? The Government submitted that it was, “having regard in particular to
Mr
Ezelin’s position as an avocat and to the local background”. By not disavowing
the
unruly incidents that had occurred during the demonstration, the applicant had,
in its
Lawyers 627
388Eur. Court HR, Case of Ezelin v. France, judgment of 26 April 1991, Series A, vol. 202, p. 8, paras. 9-10,
and p. 22, para. 47.
389Ibid., p. 20, para. 37.
390Ibid., p. 21-22, paras. 43-47.
view, approved them ipso facto. The Government also claimed that “it was
essential for
judicial institutions to react to behaviour which, on the part of an ‘officer of the
court’ ...
seriously impaired the authority of the judiciary and respect for court
decisions.”391
The European Court of Human Rights disagreed. It examined the disciplinary
sanction imposed on Mr. Ezelin “in the light of the case as a whole in order to
determine in particular whether it was proportionate to the legitimate aim
pursued,
having regard to the special importance of freedom of peaceful assembly and
freedom
of expression, which [were] closely linked in this instance”. It added that
“The proportionality principle demands that a balance be struck between
the requirements of the purposes listed in Article 11 § 2 and those of the
free expression of opinions by word, gesture or even silence by persons
assembled on the streets or in other public places. The pursuit of a just
balance must not result in avocats being discouraged, for fear of disciplinary
sanctions, from making clear their beliefs on such occasions.”392
The Court observed that in this case the penalty imposed on the applicant
was, admittedly, “at the lower end of the scale of disciplinary penalties” foreseen
in the
relevant law and that “it had mainly moral force, since it did not entail any ban,
even a
temporary one, on practising the profession or on sitting as a member of the Bar
Council.” The Court considered, however,
“that the freedom to take part in a peaceful assembly – in this case a
demonstration that had not been prohibited – is of such importance that it
cannot be restricted in any way, even for an avocat, so long as the person
concerned does not himself commit any reprehensible act on such an
occasion.”393
As the sanction complained of, however minimal, did not appear to have been
“necessary in a democratic society”, it violated article 11 of the Convention.394
The right to freedom of assembly guaranteed by article 11 of the
European Convention on Human Rights must also be guaranteed to
lawyers provided that they have not committed a reprehensible act.
There are situations which require that article 11 be considered also in
the light of the protection of personal opinions as secured by article 10 of
the Convention, since such protection is one of the objectives of freedom
of
peaceful assembly.
391Ibid., p. 22, para. 49.
392Ibid., p. 23, para. 51-52.
393Ibid., p. 23, para. 53.
394Ibid., loc. cit.
The principle of proportionality, which is one of the conditions laid down
in article 11(2) for imposing restrictions on the exercise of freedom of
assembly, requires that a balance be struck between, on the one hand,
the
requirements of the legitimate purposes cited therein and, on the other,
the
requirements of freedom of expression of opinion by word, gesture or
even
silence by persons assembled in public places.
and Lawyers in Ensuring the
Protection of Freedom of
Thought, Conscience, Religion,
Opinion, Expression,
This chapter has highlighted some of the main aspects of the fundamental
freedoms of thought, conscience, religion, opinion, expression, association and
assembly. These freedoms constitute cornerstones of the life of every human
being and
of society as a whole, which depends on them for its proper and efficient
functioning.
They are also not only relevant but even essential to the legal professions
themselves,
since they depend on them to be able to exercise their daily work independently,
impartially and effectively.
As this chapter has also shown, however, enjoyment of freedom of
conscience, religion, opinion, expression, association, assembly and other
freedoms is
in many instances fragile even in countries with an otherwise largely acceptable
human
rights record. It is therefore essential that judges, prosecutors and lawyers in
every
society be made aware of the importance of their efficient protection. Although
the
exercise of some freedoms may be subject to limitations when necessary for
certain
legitimate purposes, the legal professions are well placed to strike an
indispensable –
but fair – balance between, on the one hand, the individual’s interest in
maximizing the
enjoyment of his or her freedoms and, on the other, society’s general interest in
enabling all human beings to enjoy respect for the same freedoms. The large
body of
international jurisprudence in this area, some of which has been analysed in this
chapter, offers the legal professions valuable guidance in this regard.
Lawyers 629
The freedoms of thought, conscience, religion, opinion, expression,
association and assembly cover all or virtually all aspects of the life both of
individuals
and of society. To ensure the full and effective protection of these freedoms for
all
without discrimination means allowing for divergences of views, opinions and
ideas
that may enrich not only our personal lives but also the life of society.
Furthermore, it
helps to nurture increased understanding between, and respect for, persons with
different opinions, beliefs and religious convictions. People may not always share
each
others’ views, religious beliefs or opinions on various matters and may even find
them
repulsive and unacceptable. But by allowing a free flow of information and
exchanges
of views, ideas and information, a society allows people of all shades of opinions
to take
an active part in issues of general interest. The effective implementation of these
freedoms is thus also a precondition for a society in which people can live in
tolerance,
peace and security.
The effective protection of freedom of opinion, expression, association and
assembly is, moreover, indispensable to enable people to vindicate their human
rights
before national and international tribunals or other competent authorities, and
also to
enable others to play a role in contributing to the promotion and protection of
human
rights and fundamental freedoms. It is noteworthy in this regard that human
rights
violations involving torture, arbitrary detention, unfair trial proceedings and
extrajudicial executions more often than not have their root in a lack of tolerance
for
the views and beliefs of others. It would thus be an important step towards an
improved human rights record for all States to ensure the full and effective
exercise of
the fundamental freedoms dealt with in this chapter.
.........Chapter 13
THE RIGHT TO EQUALITY
AND NON-DISCRIMINATION
IN THE ADMINISTRATION
OF JUSTICE...........................
Learning Objectives
_ To familiarize the participants with the notion of equality before the law
and the
principle of non-discrimination as understood by international human
rights law.
_ To illustrate how these principles are being applied in practice at the
universal and
regional levels.
_ To identify some groups that may be particularly vulnerable to
discriminatory
treatment.
_ To explain what legal steps, measures and/or actions judges, prosecutors
and lawyers
must take in order to safeguard the notion of equality before the law and
the principle
of non-discrimination.
Questions
_ How would you define “discrimination” and/or “inequality” of treatment?
_ How is the notion of equality before the law and the principle of non-
discrimination
protected in the country in which you work?
_ Have you ever been faced with cases of discrimination in your
professional life?
_ Are there any particularly vulnerable groups in the country in which you
work?
_ If so, who are they and how are they discriminated against?
_ In the country in which you work, are there any particular problems of
discrimination
on the basis of gender?
_ If so, what are they?
_ What measures can you take as a legal professional to protect
everybody’s right to
equality before the law and to ensure the right of individuals and groups
not to be
subjected to discrimination?
Lawyers 631

_ Charter of the United Nations, 1945
Women, 1979
_ Statute of the International Tribunal for the Former Yugoslavia, 1993
_ Statute of the International Tribunal for Rwanda, 1994
_ Rome Statute of the International Criminal Court, 1998
_The Four Geneva Conventions of 12 August 1949
_The 1977 Protocols Additional to the Geneva Conventions of 12
August 19491
*****
_ Declaration on the Elimination of All Forms of Intolerance and of
Discrimination based on Religion or Belief, 1981
_ Declaration on the Rights of Persons Belonging to National or Ethnic,
Religious and Linguistic Minorities, 1992
_ Inter-American Convention on the Elimination of All Forms of
Discrimination against Persons with Disabilities, 1999
_ European Social Charter, 1961, and European Social Charter (Revised),
1996
_ Framework Convention for the Protection of National Minorities,
1995
Chapter 13 • The Right to Equality and Non-Discrimination in the Administration of Justice
1For more legal instruments relating to discrimination, see Trainers’ Guide, Annex II – Handout No. 1.
1. Introduction
1.1 Discrimination: A persistent serious human rights
violation
In spite of unprecedented progress at the international level in enhancing the
legal protection of individuals and groups of individuals against discrimination,
reports
from all parts of the world confirm the fact that discriminatory acts and practices
are
anything but a memory from the past. Discrimination is multifaceted and present
not
only in State or public structures but also in civil society in general. To a greater
or lesser
extent, discrimination may thus affect the way people are treated in all spheres
of
society such as politics, education, employment, social and medical services,
housing,
the penitentiary system, law enforcement and the administration of justice in
general.
Discrimination may have many different causes and may affect people of
different racial, ethnic, national or social origin such as communities of Asian or
African origin, Roma, indigenous peoples, Aborigines and people belonging to
different castes. It can also be aimed at people of different cultural, linguistic or
religious origin, persons with disabilities or the elderly and, for instance, persons
living
with the HIV virus or with AIDS. Further, persons may be discriminated against
because of their sexual orientation or preferences.
Discrimination based on gender is also commonplace in spite of the progress
made in many countries. Laws still exist which, inter alia, deny women the right
to
represent matrimonial property, the right to inherit on an equal footing with
men, and
the right to work and travel without the permission of their husbands. Women
are also
particularly prone to violent and abusive practices, which continue unabated in
many
countries, and they thus often suffer double discrimination, both because of their
race
or origin and because they are women.
A major problem in today’s world is also the discrimination to which
numerous people, especially women and children, are subjected because they
live in
poverty or extreme poverty. These circumstances may force them to migrate
and have
contributed to an increase in trafficking in persons, particularly women and
children,
who are also frequently subjected to physical restraint, violence and intimidation.
Many European countries in particular have in recent years experienced a
disturbing increase in racist and xenophobic attacks on asylum-seekers and
foreigners
in general by neo-Nazi and other groups composed mainly of young people.
However,
such attacks have been perpetrated not only on persons of foreign origin but
also on
those who dare to challenge the rightfulness of the acts committed by the
groups
concerned and the discriminatory or supremacist philosophy that they represent.
Such
philosophies and other grounds for discriminatory treatment are among the root
causes
of the tragic upsurge, during the last decade, in flows of refugees and internally
displaced people.
Lawyers 633
As shown by the World Conference against Racism in Durban, South Africa,
in 2001, the challenge facing Governments, non-governmental organizations and
civil
society in stemming the tide of discrimination is considerable and requires
serious,
effective and concerted efforts by all concerned.
1.2 The role of judges, prosecutors and lawyers in
protecting persons against discrimination
Judges, prosecutors and lawyers naturally have an essential role to play in
protecting persons against discrimination. Their task is to see to it that existing
laws and
regulations prohibiting discrimination are respected in legal practice. In some
countries
discrimination is forbidden de jure but the laws are not adequately enforced.
Judges,
prosecutors and lawyers play a crucial role in remedying these situations and
ensuring
that impunity for discriminatory acts is not tolerated, that such acts are duly
investigated
and punished, and that the victims have effective remedies at their disposal.
In situations in which the domestic law on discrimination is non-existent or
lacking in clarity, the legal professions may turn to international legal
instruments for
guidance, including, in particular, the relatively rich existing case law, parts of
which will
be reviewed below.
1.3 Glimpses of international legal history
The right to equality and non-discrimination was not easily accepted by the
international community. During the 1919 Paris Conference, held in the
aftermath of
the First World War, Japan worked intensively to have the principle of racial
equality
inserted in the Covenant of the League of Nations. Although amajority of eleven
out of
seventeen members of the Conference Commission voted in favour of the
Japanese
proposal, President Wilson of the United States “suddenly declared from the
chair that
the amendment had failed”. In spite of vigorous protests by several delegates
against
this rejection of the amendment, President Wilson insisted – to the great
disappointment of the Japanese delegation – that the amendment had not been
adopted.2 Logically, the League Covenant did not even contain any express
reference to
the principle of equality between States.3
Progress was made, however, during the elaboration of the Charter of the
United Nations after yet another global war of unspeakable horror which had its
origin
in deliberate and carefully systematized discriminatory practices embracing
entire State
structures. The world could no longer close its eyes to such vile practices and the
threat
to peace that they represented.
2Paul Gordon Lauren, Power and Prejudice – The Politics and Diplomacy of Racial Discrimination, 2nd edn.
(Boulder/Oxford, Westview
Press), pp. 99-100, and, in general on the issue of racial discrimination, Chapter 3 on “Racial Equality
Requested – and Rejected”.
3See Keba Mbaye, “ARTICLE 2, Paragraph 1”, La Charte des Nations Unies – Commentaire article par article,
2nd edn, Jean-Pierre Cot
and Alain Pellet, eds. (Paris, ECONOMICA, 1991), p. 83.
In the second preambular paragraph to the Charter of the United Nations, the
peoples of the Organization express their determination
“to reaffirm faith in fundamental human rights, in the dignity and worth of
the human person, in the equal rights of men and women and of nations
large and small”.
According to Articles 1(2) and (3) of the Charter, the purposes of the United
Nations are, inter alia, “to develop friendly relations among nations based on
respect
for the principle of equal rights and self-determination of peoples” and
“to achieve international co-operation in solving international problems of
an economic, social, cultural, or humanitarian character, and in
promoting and encouraging respect for human rights and for
fundamental freedoms for all without distinction as to race, sex,
language, or religion” (emphasis added).
While Article 2(1) expressly confirms that the “Organization is based on the
principle of the sovereign equality of all its Members”, the principle of
non-discrimination in the observance of human rights is reaffirmed in Articles
13(1)(b),
55(c) and 76(c). The Charter of the United Nations testifies to the fact that
international
peace and security depend to a large extent on “universal respect for, and
observance
of, human rights and fundamental freedoms for all without distinction as to race,
sex,
language, or religion” (Art. 55(c)).
What can with some justification be called international constitutional law is
thus today solidly based both on the principles of equality between States
and the
equal worth of all human beings, although only the latter principle will be
dealt with
in this chapter.
1.4 The purpose and scope of the present chapter
The scope of the present chapter does not permit an in-depth analysis of the
wide, complex and multifaceted subject of discrimination. The aim is rather to
provide
the legal professions with a brief description of the most important legal
provisions on
the right to equality and non-discrimination in general international human rights
law,
and then to focus on some of the most relevant aspects of the judgments, views
and
comments of the international monitoring bodies. The ultimate purpose is to
sensitize judges, prosecutors and lawyers to some of the numerous
aspects of
existing unequal and discriminatory treatment of people and thereby
also to
provide a basic legal framework for their future work at the domestic
level.
Lawyers 635
2. Selected Universal Legal

Provisions Guaranteeing the
Right to Equality before the
Law and the Right to
Non-discrimination
2.1 Universal Declaration of Human Rights, 1948
Following the prohibition of discrimination based on race, sex, language
and religion in the Charter of the United Nations, the adoption of the Universal
Declaration of Human Rights together with the Convention on the Prevention and
Punishment of the Crime of Genocide in 1948 became the next important step in
the
legal consolidation of the principle of equality before the law and the resultant
prohibition of discrimination.
Article 1 of the Universal Declaration proclaims that “All human beings are
born free and equal in dignity and rights”, while, according to article 2:
“Everyone is entitled to all the rights and freedoms set forth in this
Declaration without distinction of any kind, such as race, colour, sex,
language, religion, political or other opinion, national or social origin,
property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political,
jurisdictional or international status of the country or territory to which a
person belongs, whether it be independent, trust, non-self-governing or
under any other limitation of sovereignty.”
With regard to the right to equality, article 7 of the Universal Declaration
stipulates that:
“All are equal before the law and are entitled without any discrimination to
equal protection of the law. All are entitled to equal protection against any
discrimination in violation of this Declaration and against any incitement
to such discrimination.”
It is noteworthy that article 2 of the Universal Declaration prohibits
“distinction[s] of any kind” (emphasis added), which could be read as
meaning that
no differences at all can be legally tolerated. However, as will be seen below,
such a
restrictive interpretation has not been adopted by the international monitoring
bodies.
2.2 Convention on the Prevention and Punishment of
the Crime of Genocide, 1948
In article I of the Convention on the Prevention and Punishment of the Crime
of Genocide, “the Contracting Parties confirm that genocide, whether committed
in
time of peace or in time of war, is a crime under international law which they
undertake
to prevent and to punish”. Article II (a) – (e) enumerates acts considered as
genocide,
i.e. committed “with intent to destroy, in whole or in part, a national, ethnical,
racial or
religious group, as such”. These acts are:
_ killing members of the group;
_ causing serious bodily or mental harm to members of the group;
_ deliberately inflicting on the group conditions of life calculated to bring about
its
physical destruction in whole or in part;
_ imposing measures intended to prevent births within the group;
_ forcibly transferring children of the group to another group.
The following acts are punishable under article III (a) – (e) of the Genocide
Convention:
_ genocide;
_ conspiracy to commit genocide;
_ direct and public incitement to commit genocide;
_ attempt to commit genocide; and
_ complicity in genocide.
An identical definition of the term genocide is contained in article 6 of the
Rome Statute of the International Criminal Court,4 in article 4(2) of the Statute of
the
International Tribunal for the Former Yugoslavia and in article 2(2) of the Statute
of the
International Tribunal for Rwanda. Contrary to article 6 of the Rome Statute,
article
4(3) and article 2(3) respectively of the Statutes of the two Tribunals contain the
same
list of punishable acts as the Genocide Convention.
Although genocide is the ultimate negation of the right to equality, it will not
be further dealt with in this chapter, which considers the more everyday forms of
discrimination that face most societies. Suffice it to add in this context that, on 2
August
2001, in the Radislav Krstic case, the International Tribunal for the Former
Yugoslavia
found the General guilty of committing genocide after the fall of Srebrenica in
Bosnia
and Herzegovina in July 1995.5 He was also convicted of other serious crimes,
such as
murder, and received a sentence of 46 years’ imprisonment. This verdict was
significant, since it was the first time the Tribunal found someone guilty of
genocide.
Lawyers 637
4See, for example, UN doc. A/CONF.183/9. The Statute entered into force on 1 July 2002.
5For the text of the judgment, see http://www.un.org/icty/krstic/TrialC1/judgement/
2.3 International Covenant on Civil and

Political Rights, 1966
The right to equality and freedom from discrimination is protected by various
provisions of the International Covenant on Civil and Political Rights.6 First, in
article
2(1) each State party:
“undertakes to respect and to ensure to all individuals within its territory
and subject to its jurisdiction the rights recognized in the present
Covenant, without distinction of any kind, such as race, colour, sex,
property, birth or other status”.
Article 26 of the Covenant is the cornerstone of protection against
discrimination under the Covenant. It reads:
“All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status.”
Contrary to article 2(1), which is linked to the rights recognized in the
Covenant, article 26 provides “an autonomous right” of equality and “prohibits
discrimination in law or in fact in any field regulated and protected by public
authorities”.7
Article 20(2) obliges States parties to prohibit, by law, any “advocacy of
national, racial or religious hatred that constitutes incitement to discrimination,
hostility
or violence”.
Gender equality is emphasized in article 3, according to which States parties
“undertake to ensure the equal right of men and women to the enjoyment of all
civil
and political rights set forth in the present Covenant”.8
Article 14(1) provides that “all persons shall be equal before the courts and
tribunals”, an important guarantee which may in certain cases oblige States to
provide
legal aid in order, for instance, to ensure fair court proceedings for indigent
persons. In
addition, article 14(3) stipulates that “in the determination of any criminal
charge
against him, everyone shall be entitled ... in full equality” to the minimum
guarantees
enumerated therein.
Article 25 guarantees the equal participation in public life of every citizen
“without any of the distinctions mentioned in article 2 and without unreasonable
restrictions”.9
6On the question of non-discrimination, see General Comment No. 18 of the Human Rights Committee in UN
doc.
HRI/GEN/1/Rev.5, Compilation of General Comments and General Recommendations adopted by Human
Rights Treaty Bodies, pp. 134-137
(hereinafter referred to as United Nations Compilation of General Comments)
7Ibid., p. 136, para. 12.
8Ibid., General Comment No. 28 (Equality of rights between men and women), pp. 168-174.
9Ibid., General Comment No. 25 (Article 25), pp. 157-162.
Lastly, article 27 of the Covenant provides express protection for ethnic,
religious and linguistic minorities. According to article 27,
“persons belonging to such minorities shall not be denied the right, in
community with the other members of their group, to enjoy their own
culture, to profess and practice their own religion, or to use their own
language.”10
2.4 International Covenant on Economic, Social and
Cultural Rights, 1966
Under article 2(2) of the International Covenant on Economic, Social and
Cultural Rights the States parties undertake
“to guarantee that the rights enunciated in the present Covenant will be
exercised without discrimination of any kind as to race, colour, sex,
property, birth or other status”.
In line with the terms of the International Covenant on Civil and Political
Rights, the States parties to the International Covenant on Economic, Social and
Cultural Rights also undertake, by virtue of article 3,
“to ensure the equal right of men and women to the enjoyment of all
economic, social and cultural rights set forth in the present Covenant”.
The principle of non-discrimination is also contained in article 7(a)(i), which
guarantees “fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions of work
not
inferior to those enjoyed by men, with equal pay for equal work”. Lastly, article
7(c) of
the Covenant secures the right to “equal opportunity for everyone to be
promoted in
his employment to an appropriate higher level, subject to no considerations
other than
those of seniority and competence”.11
2.5 International Convention on the Elimination of
All Forms of Racial Discrimination, 1965
For the purposes of the International Convention on the Elimination of All
Forms of Racial Discrimination, “the term ‘racial discrimination’ shall mean”,
according to article 1(1),
Lawyers 639
10Ibid., see also General Comment No. 23 (Article 27), pp. 147-150.
11For the views of the Committee on Economic, Social and Cultural Rights relating to discrimination, see,
inter alia, the following
general comments in the United Nations Compilation of General Comments: General Comment No. 3 (The
nature of States parties’
obligations (art. 2(1)), pp. 18-21; General Comment No. 4 (The right to adequate housing (art. 11(1)), pp.
22-27; General Comment
No. 5 (Persons with disabilities), pp. 28-38; General Comment No. 6 (The economic, social and cultural rights
of older persons),
pp. 38-48; General Comment No. 12 (The right to adequate food (art. 11)), pp. 66-74; General Comment No.
13 (The right to
education (art. 13)), pp. 74-89; and General Comment No. 14 (The right to the highest attainable standard
of health (art, 12)),
pp. 90-109.
“any distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic origin which has the purpose or effect of
nullifying or impairing the recognition, enjoyment or exercise, on an equal
footing, of human rights and fundamental freedoms in the political,
economic, social, cultural or any other field of public life” (emphasis
added).
The Convention does not, however, “apply to distinctions, exclusions,
restrictions or preferences made by a State Party ... between citizens and non-
citizens”
(art. 2), and nothing in the Convention “may be interpreted as affecting in any
way the
legal provisions of States Parties concerning nationality, citizenship or
naturalization,
provided that such provisions do not discriminate against any
particular
nationality” (art. 3; emphasis added). It is also noteworthy that the Convention
is only
applicable to discrimination that takes place in the “field of public life” and that it
does
not, in principle, extend to discrimination carried out in private.
The Convention regulates in some detail the obligations of States parties to
eliminate racial discrimination and lists, in article 5, the major civil, political,
economic,
social and cultural rights that must be enjoyed “without distinction as to race,
colour, or
national or ethnic origin”.12
2.6 Convention on the Rights of the Child, 1989
Article 2(1) of the Convention on the Rights if the Child provides that:
“States Parties shall respect and ensure the rights set forth in the present
Convention to each child within their jurisdiction without discrimination
of any kind, irrespective of the child’s or his or her parent’s or legal
guardian’s race, colour, sex, language, religion, political or other opinion,
national, ethnic or social origin, property, disability, birth or other status.”
The term “disability” has here been added to the grounds on which no
discrimination is allowed.
Under article 2(2) of the Convention, States parties are required to take
“all appropriate measures to ensure that the child is protected against all
forms of discrimination or punishment on the basis of the status, activities,
expressed opinion, or beliefs of the child’s parents, legal guardians, or
family members”.
With regard to the child’s education, the States parties agree in article 29(d)
that it shall be directed, inter alia, to:
12For further details on how the Committee on the Elimination of Racial Discrimination interprets the
Convention, see, inter alia,
the following recommendations in the United Nations Compilation of General Comments: General
Recommendation XI (Non-citizens),
p. 182; General Recommendation XIV (art. 1(1)), pp. 183-184; General Recommendation XV (art. 4), pp.
184-185; General
Recommendation XIX (art. 3), p. 188; General Recommendation XX (art. 5), p. 188-189; General
Recommendation XXI (The right
of self-determination), pp. 189-191; General Recommendation XXIII (The rights of indigenous peoples), pp.
192-193; General
Recommendation XXIV (art. 1), pp. 193-194; General Recommendation XXV (Gender-related dimensions of
racial discrimination),
pp. 194-195; General Recommendation XXVI (art. 6), p. 195; and General Recommendation XXVII
(Discrimination against Roma),
pp. 196-202.
“(d) The preparation of the child for responsible life in a free society, in
the spirit of understanding, peace, tolerance, equality of sexes, and
friendship among all peoples, ethnic, national and religious groups and
persons of indigenous origin”.
Lastly, article 30 of the Convention on the Rights of the Child protects
minority rights in terms that are similar to, but not identical with, article 25 of
the
International Covenant on Civil and Political Rights. It reads as follows:
“In those States in which ethnic, religious or linguistic minorities or
persons of indigenous origin exist, a child belonging to such a minority or
who is indigenous shall not be denied the right, in community with other
members of his or her group, to enjoy his or her own culture, to profess
and practice his or her own religion, or to use his or her own language.”13
2.7 Convention on the Elimination of All Forms of
Discrimination against Women, 1979
Discrimination against Women describes “discrimination against women” as
meaning
“any distinction, exclusion or restriction made on the basis of sex which
has the effect or purpose of impairing or nullifying the recognition,
enjoyment or exercise by women, irrespective of their marital status, on a
basis of equality of men and women, of human rights and fundamental
freedoms in the political, economic, social, cultural, civil or any other
field” (emphasis added).
As noted in subsection 3.2 of Chapter 11, the field of applicability of this
Convention is wider than that of the International Convention on the Elimination
of
All Forms of Racial Discrimination, in that it also covers acts falling within the
private
sphere.
Given the importance of the rights of women in the administration of justice
and the role played by the Convention on the Elimination of All Forms of
Discrimination against Women in furthering these rights, they were given
particular
attention in Chapter 11 of this Manual. However, several cases involving gender
discrimination dealt with by the international monitoring bodies under the
general
human rights treaties will be covered in this chapter.14
Lawyers 641
13For the views of the Committee on the Rights of the Child on the aims of education, see its General
Comment No. 1, which
deals, inter alia, with discrimination, in United Nations Compilation of General Comments, pp. 255-262.
14For details regarding the interpretation of the Convention on the Elimination of Discrimination against
Women, see, inter alia,
the following recommendations in the United Nations Compilation of General Comments: General
Recommendation No. 12 (Violence
against women), p. 209; General Recommendation No. 14 (Female circumcision), pp. 211-212; General
Recommendation No. 15
(Avoidance of discrimination against women in national strategies for the prevention and control of acquired
immuno-deficiency
syndrome (AIDS)), pp. 212-213; General Recommendation No. 16 (Unpaid women workers in rural and
urban family enterprises),
pp. 213-214; General Recommendation No. 18 (Disabled women), pp. 215-216; General Recommendation
No. 19 (Violence against
women), pp. 216-222; General Recommendation No. 21 (Equality in marriage and family relations), pp. 222-
231; General
Recommendation No. 23 (Political and public life), pp. 233-244; and General Recommendation No. 24
(Women and health: article
12), pp. 244-251.
2.8 Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on
Religion or Belief, 1981
Article 1(1) of the Declaration on the Elimination of All Forms of Intolerance
and of Discrimination based on Religion and Belief guarantees to everyone “the
right to
freedom of thought, conscience and religion”, a right which “shall include
freedom to
have a religion or whatever beliefs of his choice, and freedom, either individually
or in
community with others and in public or private, to manifest his religion or belief
in
worship, observance, practice and teaching”. Article 1(2) provides that “no one
shall be
subject to coercion which would impair his freedom to have a religion or belief of
his
choice,” while article 1(3) allows for limitations on the freedom “to manifest
one’s
religion or belief” on condition that such limitations “are prescribed by law and
are
necessary to protect public safety, order, health or morals or the fundamental
rights and
freedoms of others”.
The right not to be subjected to discrimination “by any State, institution,
group of persons, or persons on the grounds of religion or other belief” is laid
down in
article 2(1) of the Declaration. For the purposes of the Declaration, article 2(2)
specifies
that
“the expression ‘intolerance and discrimination based on religion or belief’
means any distinction, exclusion, restriction or preference based on
religion or belief and having as its purpose or as its effect nullification or
impairment of the recognition, enjoyment or exercise of human rights and
fundamental freedoms on an equal basis”.
Since 1987, a Special Rapporteur appointed by the United Nations
Commission on Human Rights has been examining acts in all parts of the world
that are
inconsistent with the provisions of the Declaration and has suggested remedial
measures.15
It is noteworthy that the right to freedom of thought, conscience and religion
is also protected by article 18 of the International Covenant on Civil and Political
Rights, which, according to article 4(2), can never in any circumstances be
derogated
from. For the States parties to the Covenant the provisions on discrimination are,
of
course, fully applicable also with regard to this freedom.
2.9 Declaration on the Rights of Persons Belonging to
National or Ethnic, Religious and Linguistic
Minorities, 1992
In the sixth preambular paragraph to the Declaration on the Rights of Persons
Belonging to National or Ethnic, Religious and Linguistic Minorities, the General
Assembly of the United Nations emphasizes
15On the work of the Special Rapporteur, see, for example, the Report submitted by Mr. Abdelfattah Amor,
Special Rapporteur,
in accordance with Commission on Human Rights resolution 2000/33 (UN doc. E/CN.4/2001/63).
“that the constant promotion and realization of the rights of persons
belonging to national or ethnic, religious and linguistic minorities, as an
integral part of the development of society as a whole and within a
democratic framework based on the rule of law, would contribute to the
strengthening of friendship and cooperation among peoples and States”.
The United Nations thus recognizes that a democratic constitutional order
respectful of the rule of law and the rights of minorities plays a crucial role in
furthering
international peace and security.
Article 1(1) of the Declaration provides that “States shall protect the existence
and the national or ethnic, cultural, religious and linguistic identity of minorities
within
their respective territories and shall encourage conditions for the promotion of
that
identity.” To achieve these ends, they shall, according to article 1(2), “adopt
appropriate
legislative and other measures”. Articles 2 and 3 give details of the rights of
persons
belonging to the protected minorities, while articles 4 to 7 identify the measures
that
States are required to take in order to fulfil the objectives of the Declaration,
either
alone or in cooperation with each other.
Suffice it to mention by way of example that, according to article 2(1) of the
Declaration,
“Persons belonging to national or ethnic, religious and linguistic minorities
... have the right to enjoy their own culture, to profess and practice their
own religion, and to use their own language, in private and in public, freely
and without interference or any form of discrimination.”
3. Selected Regional Legal

Provisions Guaranteeing the
Right to Equality before the
Law and the Right to
Non-discrimination
3.1 African Charter on Human and Peoples’ Rights,
1981
Article 2 of the African Charter on Human and Peoples’ Rights reads as
follows:
“Every individual shall be entitled to the enjoyment of the rights and
freedoms recognized and guaranteed in the present Charter without
distinction of any kind such as race, ethnic group, colour, sex, language,
religion, political or any other opinion, national and social origin, fortune,
birth or other status.”
Lawyers 643
Article 3 expressly states that “every individual shall be equal before the law”
and “shall be entitled to equal protection of the law” (art. 3(1) and (2)).
Under article 18(3) of the Charter, States parties further undertake to ensure
“the elimination of every discrimination against women”.
Considering that the African Charter also deals with the rights of peoples, it is
logical that article 19 stipulates that “all peoples shall be equal; they shall enjoy
the same
respect and shall have the same rights. Nothing shall justify the domination of a
people
by another.”
3.2 African Charter on the Rights and Welfare of the
Child, 1990
A general prohibition of discrimination is contained in article 3 of the African
Charter on the Rights and Welfare of the Child, according to which:
“Every child shall be entitled to the enjoyment of the rights and freedoms
recognised and guaranteed in this Charter irrespective of the child’s or
his/her parents’ or legal guardians’ race, ethnic group, colour, sex,
language, relation, political or other opinion, national and social origin,
fortune, birth or other status.”
In addition, under article 21(1) of the Charter, the States parties are required to
take “all appropriate measures to eliminate harmful social and cultural practices
affecting the welfare, dignity, normal growth and development of the child and in
particular ... those customs and practices discriminatory to the child on the
grounds of
sex or other status”.
3.3 American Convention on Human Rights, 1969
Under article 1 of the American Convention on Human Rights, the States
parties “undertake to respect the rights and freedoms recognized” in the treaty
“and to ensure to all persons subject to their jurisdiction the free and full
exercise of those rights and freedoms, without any discrimination for
reasons of race, color, sex, language, religion, political or other opinion,
national or social origin, economic status, birth, or any other social
condition”.
Contrary to the International Covenants, the term “property” is not contained
in article 1 of the American Convention. However, the term “economic status”
would
seem to cover a wider range of situations than “property”.
The notion of “equality” is found in article 8(2) of the Convention, according
to which every person accused of a criminal offence is entitled “with full
equality” to
certain minimum guarantees during the court proceedings against him or her.
Lastly, article 24 stipulates that “all persons are equal before the law.
Consequently, they are entitled, without discrimination, to equal protection of
the law.”
3.4 Additional Protocol to the American Convention
on Human Rights in the Area of Economic, Social
and Cultural Rights, 1988
The Additional Protocol to the American Convention on Human Rights in
the Area of Economic, Social and Cultural Rights, also called the “Protocol of San
Salvador”, adds a number of rights to the original Convention such as the right to
work,
social security, health, food and education, as well as the right to special
protection of
the elderly and the handicapped. The obligation of non-discrimination is
contained in
article 3, according to which the States parties “undertake to guarantee the
exercise of
the rights set forth” in the Protocol
“without discrimination of any kind for reasons related to race, color, sex,
language, religion, political or other opinions, national or social origin,
economic status, birth or any other social condition”.
3.5 Inter-American Convention on the Prevention,
Punishment, and Eradication of Violence against
Women, 1994
The Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women aims at the elimination of gender-based
violence in both the public and private spheres, and specifies in article 6(a) and
(b) that
“the right of every women to be free from violence, includes, among others ...
the right
of women to be free from all forms of discrimination [and] the right of women to
be
valued and educated free of stereotyped patterns of behaviour and social and
cultural
practices based on concepts of inferiority or subordination.”
Articles 7 and 8 of the Convention give details of the duties of the States
parties to prevent, punish and eradicate all forms of violence against women.
When
adopting the required measures, the States parties shall, moreover, according to
article 9,
“take special account of the vulnerability of women to violence by reason
of, among others, their race or ethnic background or their status as
migrants, refugees or displaced persons. Similar considerations shall be
given to women subjected to violence while pregnant or who are disabled,
of minor age, elderly, socioeconomically disadvantaged, affected by armed
conflict or deprived of their freedom.”
This Convention is of particular interest in that it is the only international
treaty that explicitly and exclusively addresses the serious problem of violence
against
women.
Lawyers 645
3.6 Inter-American Convention on the Elimination of
All Forms of Discrimination against Persons with
Disabilities, 199916
The objectives of the Inter-American Convention on the Elimination of All
Forms of Discrimination against Persons with Disabilities are, as stated in article
II, “to
prevent and eliminate all forms of discrimination against persons with disabilities
and
to promote their full integration into society”. For the purpose of the Convention,
the
term “discrimination against persons with disabilities”
“means any distinction, exclusion, or restriction based on a disability,
record of disability, condition resulting from a previous disability, or
perception of disability, whether present or past, which has the effect or
objective of impairing or nullifying the recognition, enjoyment, or exercise
by a person with a disability of his or her human rights and fundamental
freedoms” (art. I(2)(a)).
However,
“A distinction or preference adopted by a state party to promote the social
integration or personal development of persons with disabilities does not
constitute discrimination provided that the distinction or preference does
not in itself limit the right of persons with disabilities to equality and that
individuals with disabilities are not forced to accept such distinction or
preference” (art. I (2)(b)).
3.7 European Convention on Human Rights, 1950
The European Convention on Human Rights differs from the other general
human rights treaties in that it does not contain an independent prohibition on
discrimination but only a prohibition that is linked to the enjoyment of the rights
and
freedoms guaranteed by the Convention and its Protocols. This means that
allegations
of discrimination that are not connected to the exercise of these rights and
freedoms
fall outside the competence of the European Court of Human Rights. Article 14
reads:
“The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex, race,
colour, language, religion, political or other opinion, national or social
origin, association with a national minority, property, birth or other
status.”
It is interesting to note that the prohibition of discrimination in article 14
covers “association with a national minority”, which is not to be found expressis
verbis in
articles 2(1) and 26 of the International Covenant on Civil and Political Rights,
article 1
of the American Convention on Human Rights or article 2 of the African Charter
on
Human and Peoples’ Rights. However, the latter provision, as seen above, uses
the
term “ethnic group”, which is of more limited scope than “minority”.
16As of 17 June 2002, nine States had ratified this Convention, which entered into force on 14 September
2001; see
http://www.oas.org/Juridico/english/sigs/a-65.html
The member States of the Council of Europe have, however, taken important
steps to remedy the abovementioned lacuna in the Convention: on 4 November
2000,
the fiftieth anniversary of the adoption of the Convention itself, they adopted
Protocol
No. 12 to the European Convention, which contains the following general
prohibition
of discrimination:
“1. The enjoyment of any right set forth by law shall be secured without
discrimination on any ground such as sex, race, colour, language, religion,
political or other opinion, national or social origin, association with a
national minority, property, birth or other status.
2. No one shall be discriminated against by any public authority on any
ground such as those mentioned in paragraph 1.”
The Protocol requires ten ratifications before it enters into force (art. 5(1)). As
of 17 June 2002, only Cyprus and Georgia had ratified it.17
3.8 European Social Charter, 1961, and European
Social Charter (revised), 1996
The revised European Social Charter of 1996 only progressively replaces the
1961 Social Charter. The revised version adds, inter alia, new social rights to
those
existing in the 1961 treaty, such as the right to protection against poverty and
exclusion
(art. 30), a form of discrimination experienced by an increasing number of
people in the
industrialized countries towards the end of the last century.
As regards the 1961 Charter, none of the operative provisions contains a
general prohibition of discrimination, but the signatory States agree in the third
preambular paragraph
“that the enjoyment of social rights should be secured without
discrimination on grounds of race, colour, sex, religion, political opinion,
national extraction or social origin” (emphasis added).
However, article E in Part V of the Charter, as revised, contains a
non-discrimination provision, according to which
“The enjoyment of the rights set forth in this Charter shall be secured
without discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national extraction or social origin,
health, association with a national minority, birth or other status.”
The appendix to the revised Charter specifies that “differential treatment
based on an objective and reasonable justification shall not be deemed
discriminatory”.
Compared with the legally non-binding reference to the principle of
non-discrimination in the preamble to the 1961 Charter, the member States of
the
Council of Europe have at last, with the adoption of the revised Charter, fully
embraced
this principle in the field of social rights.
Lawyers 647
17For the status of ratifications, see the Council of Europe web site: http://www.coe.int/
3.9 Framework Convention for the Protection of

National Minorities, 1994
The Framework Convention for the Protection of National Minorities is a
unique instrument in that it is “the first ever legally binding multilateral
instrument
devoted to the protection of national minorities in general”.18 Article 1 of this
Convention also makes it clear that “the protection of national minorities and of
the
rights and freedoms of persons belonging to those minorities forms an integral
part of
the international protection of human rights, and as such falls within the scope of
international co-operation.” Moreover, as pointed out in the sixth preambular
paragraph to the Convention,
“a pluralist and genuinely democratic society should not only respect the
ethnic, cultural, linguistic and religious identity of each person belonging to
a national minority, but also create appropriate conditions enabling them
to express, preserve and develop this identity.”
In other words, concrete, positive measures may be required to ensure due
protection for national minorities. Although it is a legally binding international
treaty,
the term “Framework Convention” makes it clear that the principles it contains
“are
not directly applicable in the domestic orders of the member States, but will
have to be
implemented through national legislation and appropriate governmental
policies”.19
Among the primarily programme-type provisions contained in Section II, article 4
deals
with discrimination. It reads:
“1. The Parties undertake to guarantee to persons belonging to national
minorities the right of equality before the law and of equal protection of
the law. In this respect, any discrimination based on belonging to a national
minority shall be prohibited.
2. The Parties undertake to adopt, where necessary, adequate measures in
order to promote, in all areas of economic, social, political and cultural life, full
and effective equality between persons belonging to a national minority and
those belonging to the majority. In this respect, they shall take due account of
the specific conditions of the persons belonging to national minorities.
3. The measures adopted in accordance with paragraph 2 shall not be
considered to be an act of discrimination.”
The right to equality before the law and by law, including the prohibition
of discrimination, is an overarching principle:
_ that is essential to international peace and security;
_ that conditions the enjoyment of all human rights, be they civil,
political, economic, social or cultural;
_ that States are obliged under international law to ensure and to respect.
18See “Introduction to the Framework Convention for the Protection of National Minorities” at:
http://www.humanrights.coe.int/Minorities/Eng/Presentation/FCNMintro.htm, p. 1.
19Ibid., loc. cit.
4. The Prohibition of
Discrimination and Public
Emergencies
Four of the treaties dealt with in this chapter contain provisions authorizing
States parties, on certain strictly specified conditions, to derogate from the
international
legal obligations incurred under the treaties concerned. The relevant provisions
are:
_ article 4 of the International Covenant on Civil and Political Rights
_ article 27 of the American Convention on Human Rights
_ article 15 of the European Convention on Human Rights
_ article 30 of the 1961 European Social Charter and article F of the revised
Charter of
1996
The subject of derogations from the first three of these treaties will be
analysed in Chapter 16 of this Manual. At present it is sufficient to point out that,
in
order to be permissible under article 4(1) of the International Covenant, the
derogatory
measures must not involve “discrimination solely on the ground of race, colour,
sex,
language, religion or social origin” (emphasis added). The provision thus does
not
include the following grounds contained in articles 2(1) and 26 of the Covenant:
_ political or other opinion
_ national origin
_ property
_ birth or other status
During the elaboration of article 4(1), Chile suggested “the insertion of social
origin and birth as two additional grounds on which discrimination should be
prohibited even in time of emergency”.20 Lebanon for its part suggested deleting
the
word “solely”, “as it implied that while discrimination was not permitted on any
one
ground given in the text, it would be permissible on any two grounds”.21
The United Kingdom, which had submitted the draft proposal, accepted the
reference to social origin “but not the mention of birth, as legitimate restrictions
might
in some cases be imposed on persons because of their birth in a foreign country,
although they were no longer that country’s nationals”.22 With regard to the word
“solely”, the United Kingdom considered that it “had a certain importance” since
“it
might easily happen that during an emergency a State would impose restrictions
on a
certain national group which at the same time happened to be a racial group”
and “that
word would make it impossible for the group to claim that it had been
persecuted solely
Lawyers 649
20UN doc. E/CN.4/SR.330, p. 4. Moreover, Uruguay hoped that the United Kingdom “would agree to add a
reference to social
origin and birth in the commendable non-discrimination provision ... in order to ensure consistency with
other articles of the
covenant” (p. 5). Lebanon agreed with the Chilean proposal to insert the words “social origin”(p. 8). France
agreed with Chile
“especially in connexion with social origin” (p. 7).
21Ibid., p. 8.
22Ibid., p. 10.
on racial grounds”.23 In the light of the United Kingdom’s comments, Chile and
Uruguay accepted that it was not desirable to refer to “birth” in the article
concerned.24
*****
To be consistent with article 27(1) of the American Convention, derogatory
measures must not involve discrimination “on the ground of race, color, sex,
language,
religion, or social origin”. The only difference from article 4(1) of the
International
Covenant in this regard is that the term “solely” is absent.
*****
Article 15(1) of the European Convention on Human Rights does not,
however, contain any reference to the prohibition of discrimination. But this
lacuna
cannot be taken to mean that, faced with a true public emergency, the
Contracting
States would be allowed to derogate at will from the prohibition of
discrimination.
Other conditions, such as that of strict proportionality, would appear to make the
lawfulness of such derogations highly unlikely. Moreover, as will be seen below,
the
interpretation of the term “discrimination” per se, in article 14 for instance,
excludes
any distinctions that are not reasonably justified for an objective purpose.
Lastly, neither article 30 of the 1961 European Social Charter nor article F of
the revised Charter contains any reference to the principle of non-discrimination.
*****
With regard to the absence of a derogation provision in the African Charter
on Human and Peoples’ Rights, the African Commission on Human and Peoples’
Rights has held that the Charter “does not allow for states parties to derogate
from their
treaty obligations during emergency situations. Thus, even a civil war ... cannot
be used
as an excuse by the state [for] violating or permitting violations of rights in the
African
Charter.”25 This means that the non-discrimination provisions in articles 2, 3 and
19 of
the Charter must at all times be fully implemented.
*****
Although international humanitarian law stricto sensu falls outside the scope of
this Manual, it is noteworthy that the principle of non-discrimination runs like a
red
thread through the four 1949 Geneva Conventions and their two Additional
Protocols
of 1977. It is contained, inter alia, in the following provisions:
_ common article 3 of the four Geneva Conventions;
_ article 16 of the Geneva Convention Relative to the Treatment of Prisoners of
War
(Third Geneva Convention), 1949;
_ article 27 of the Geneva Convention Relative to the Protection of Civilian
Persons
in Time of War (Fourth Geneva Convention), 1949;
23Ibid., loc. cit.
24Ibid., p. 11.
25ACHPR, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Communication No. 74/92,
Ordinary session, October 1995, p. 50, para. 40 of the decision as published at:
http://www.up.ac.za/chr/ahrdb/acomm_decisions.html
_ articles 9(1) and 75(1) of the Protocol Additional to the Geneva Conventions of
12
August 1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I);
_ articles 2(1), 4(1) and 7(2) of the Protocol Additional to the Geneva
Conventions of
12 August 1949, and Relating to the Protection of Victims of Non-International
Armed Conflicts (Protocol II).
What these provisions show is that even in the direst of circumstances, in the
heat of an international or non-international armed conflict, the States involved
are
strictly bound to respect certain legal human standards, including the right to
equal
treatment and the principle of non-discrimination.
The right to equality before the law and to non-discrimination must, in
principle, be respected in all circumstances, including in public
emergencies
and at times of international and non-international armed conflict.
5. The General Meaning of Equality
and Non-Discrimination
As noted above, and as emphasized by the Human Rights Committee,
“non-discrimination, together with equality before the law and equal protection
of the
law without any discrimination, constitute a basic and general principle relating
to the
protection of human rights.”26 However, in discussing the question of equality
and
non-discrimination, it is essential to be aware of the fact that, despite what
seems to be
suggested by the wording of, in particular, article 2 of the Universal Declaration
of
Human Rights and article 2(1) of the International Covenant on Civil and Political
Rights, not all distinctions between persons and groups of persons can be
regarded as
discrimination in the true sense of this term. This follows from the consistent
case law
of the international monitoring bodies, according to which distinctions made
between
people are justified provided that they are, in general terms, reasonable and
imposed for
an objective and legitimate purpose.
With regard to the term “discrimination” in the International Covenant on
Civil and Political Rights, the Human Rights Committee has stated its belief
“that the term ‘discrimination’ as used in the Covenant should be
understood to imply any distinction, exclusion, restriction or preference
which is based on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status, and which has the purpose or effect of nullifying or impairing
the recognition, enjoyment or exercise by all persons, on an equal
footing, of all rights and freedoms”.27
Lawyers 651
26See General Comment No. 18, in United Nations Compilation of General Comments, p. 134, para. 1.
27Ibid, p. 135, para. 7; emphasis added.
However, as noted by the Committee, “the enjoyment of rights and freedoms
on an equal footing ... does not mean identical treatment in every
instance”. In
support of its statement, it points out that certain provisions of the Covenant
itself
contain distinctions between people, for example article 6(5) which prohibits the
death
sentence from being imposed on persons below 18 years of age and from being
carried
out on pregnant women.28
Moreover, “the principle of equality sometimes requires States parties to take
affirmative action in order to diminish or eliminate conditions which cause or
help to
perpetuate discrimination prohibited by the Covenant. For example, in a State
where
the general conditions of a certain part of the population prevent or impair their
enjoyment of human rights, the State should take specific action to correct those
conditions. Such action may involve granting for a time to the part of the
population
concerned certain preferential treatment in specific matters as compared with
the rest
of the population. However, as long as such action is needed to correct
discrimination
in fact, it is a case of legitimate differentiation under the Covenant.”29
When dealing with alleged violations of article 26 in communications
submitted under the Optional Protocol, the Committee has confirmed that “the
right
to equality before the law and equal protection of the law without any
discrimination,
does not make all differences of treatment discriminatory. A differentiation
based on
reasonable and objective criteria does not amount to prohibited
discrimination
within the meaning of article 26.”30 It is thus the Committee’s task, in
relevant cases
brought before it, to examine whether the State party concerned has complied
with
these criteria.
*****
In the Americas, the right to equal protection of the law as guaranteed by
article 24 of the American Convention on Human Rights was considered by the
Inter-American Court of Human Rights in its advisory opinion on the Proposed
Amendments to the Naturalization Provisions of the Constitution of Costa Rica. In
this opinion,
the Inter-American Court undertook an instructive and detailed examination of
the
concepts of discrimination and equality.
The Court pointed out, to begin with, that although article 24 of the American
Convention is not conceptually identical to article 1(1), which contains a general
prohibition of discrimination regarding the exercise of the rights and freedoms
laid
down in the Convention, “Article 24 restates to a certain degree the principle
established in Article 1(1). In recognizing equality before the law, it prohibits all
discriminatory treatment originating in a legal prescription.”31 The Court then
gave the
following explanation of the origin and meaning of the notion of equality:
30Communication No. 172/1984, S. W. M. Broeks v. the Netherlands (Views adopted on 9 April 1987), in UN
doc. GAOR,
A/42/40, p. 150, para. 13; emphasis added.
31I-A Court HR, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica,
Advisory Opinion OC-4/84 of January
19, 1984, Series A, No. 4, p. 104, para. 54.
“55. The notion of equality springs directly from the oneness of the
human family and is linked to the essential dignity of the individual. That
principle cannot be reconciled with the notion that a given group has the
right to privileged treatment because of its perceived superiority. It is
equally irreconcilable with the notion to characterize a group as inferior
and treat it with hostility or otherwise subject it to discrimination in the
enjoyment of rights which are accorded to others not so classified. It is
impermissible to subject human beings to differences in treatment that are
inconsistent with their unique and congenerous character.
56. Precisely because equality and nondiscrimination are inherent in the
idea of the oneness in dignity and worth of all human beings, it follows that
not all differences in legal treatment are discriminatory as such, for not all
differences in treatment are in themselves offensive to human dignity. The
European Court of Human Rights, ‘following the principles which may be
extracted from the legal practice of a large number of democratic States,’
has held that a difference in treatment is only discriminatory when it ‘has
no objective and reasonable justification.’... There may well exist certain
factual inequalities that might legitimately give rise to inequalities in legal
treatment that do not violate principles of justice. They may in fact be
instrumental in achieving justice or in protecting those who find
themselves in a weak legal position. For example, it cannot be deemed
discrimination on the grounds of age or social status for the law to impose
limits on the legal capacity of minors or mentally incompetent persons who
lack the capacity to protect their interests.
57. Accordingly, no discrimination exists if the difference in treatment
has a legitimate purpose and if it does not lead to situations which are
contrary to justice, to reason or to the nature of things. It follows, that
there would be no discrimination in differences in treatment of individuals
by a state when the classifications selected are based on substantial
factual differences and there exists a reasonable relationship of
proportionality between these differences and the aims of the legal
rule under review. These aims may not be unjust or unreasonable,
that is, they may not be arbitrary, capricious, despotic or in conflict
with the essential oneness and dignity of humankind.”32
However, the Court then made a concession to the realities that any given
Government may face in specific situations:
“58. Although it cannot be denied that a given factual context may make
it more or less difficult to determine whether or not one has encountered
the situation described in the foregoing paragraph, it is equally true that,
starting with the notion of the essential oneness and dignity of the human
family, it is possible to identify circumstances in which considerations of
public welfare may justify departures to a greater or lesser degree from the
standards articulated above. One is here dealing with values which take on
concrete dimensions in the face of those real situations in which they have
to be applied and which permit in each case a certain margin of
appreciation in giving expression to them.”33
*****
Lawyers 653
33Ibid., p. 106, para. 58.
At the European level, the European Court of Human Rights first dealt with
article 14 of the European Convention on Human Rights in the Belgian Linguistic
case,
holding that the guarantee contained in that article “has no independent
existence in the
sense that under the terms of Article 14 it relates solely to ‘rights and freedoms
set forth
in the Convention’.”34 However, “a measure which in itself is in conformity with
the
requirements of the Article enshrining the right or freedom in question may ...
infringe
this Article when read in conjunction with Article 14 for the reason that it is of a
discriminatory nature ... It is as though [Article 14] formed an integral part of
each of
the articles laying down rights and freedoms.”35
The European Court then made the following ruling on whether article 14
outlaws all differences in treatment:
“10. In spite of the very general wording of the French version (‘sans
distinction aucune’), Article 14 does not forbid every difference in the
exercise of the rights and freedoms recognised. This version must be read
in the light of the more restrictive text of the English version (‘without
discrimination’). In addition, and in particular, one would reach absurd
results were one to give Article 14 an interpretation as wide as that which
the French version seems to imply. One would, in effect, be led to judge as
contrary to the Convention every one of the many legal or administrative
provisions which do not secure to everyone complete equality of treatment
in the enjoyment of the rights and freedoms recognised. The competent
national authorities are frequently confronted with situations and
problems which, on account of differences inherent therein, call for
different legal solutions; moreover, certain legal inequalities tend only to
correct factual inequalities. The extensive interpretation mentioned above
cannot consequently be accepted.
It is important, then, to look for the criteria which enable a determination
to be made as to whether or not a given difference in treatment ...
contravenes Article 14. On this question the Court, following the
principles which may be extracted from the legal practice of a large number
of democratic States, holds that the principle of equality of treatment is
violated if the distinction has no objective and reasonable justification. The
existence of such a justification must be assessed in relation to the aim and
effects of the measure under consideration, regard being had to the
principles which normally prevail in democratic societies. A difference of
treatment in the exercise of a right laid down in the Convention must not
only pursue a legitimate aim: Article 14 is likewise violated when it is
clearly established that there is no reasonable relationship of
proportionality between the means employed and the aim sought to
be realised.
In attempting to find out in a given case, whether or not there has been an
arbitrary distinction, the Court cannot disregard those legal and factual
features which characterise the life of the society in the State which, as a
Contracting Party, has to answer for the measure in dispute. In so doing it
34Eur. Court HR, Case “relating to certain aspects of the laws on the use of languages in education in
Belgium” (Merits), judgment of 23 July 1968,
35Ibid., p. 34, para. 9.
cannot assume the rôle of the competent national authorities, for it would
thereby lose sight of the subsidiary nature of the international machinery of
collective enforcement established by the Convention. The national
authorities remain free to choose the measures which they consider
appropriate in those matters which are governed by the Convention.
Review by the Court concerns only the conformity of those measures with
the requirements of the Convention.”36
However, the European Court has had occasion to develop further its
understanding of discrimination and, although it long considered that the right
under
article 14 was violated “when States treat differently persons in analogous
situations
without providing an objective and reasonable justification”, it now also
considers
“that this is not the only facet of the prohibition of discrimination in Article 14”
and
that
“the right not to be discriminated against in the enjoyment of the rights
guaranteed under the Convention is also violated when States without
objective and reasonable justification fail to treat differently persons
whose situations are significantly different.”37
However, like the Inter-American Court of Human Rights, the European
Court of Human Rights has accepted that “the Contracting States enjoy a certain
margin of appreciation in assessing whether and to what extent differences in
otherwise
similar situations justify a different treatment.”38 On the other hand, “very
weighty
reasons” would have to submitted by the respondent Government before the
Court
would regard a difference in treatment as a legitimate differentiation under
article 14,
particularly if it was based exclusively on gender39 or birth out of wedlock.40
These are some of the most detailed and authoritative legal rulings on the
notion of equality of treatment and non-discrimination in international human
rights
law. They form the basis of the examples chosen below from the jurisprudence of
the
Human Rights Committee and the Inter-American and European Courts of Human
Rights. The common traits of the case law of these bodies may be summarized
as
follows:
The principle of equality and non-discrimination does not mean that all
distinctions between people are illegal under international law.
Differentiations are legitimate and hence lawful provided that they:
_ pursue a legitimate aim such as affirmative action to deal with factual
inequalities, and
_ are reasonable in the light of their legitimate aim.
Lawyers 655
36Ibid., p. 34-35, para. 10; emphasis added.
37Eur. Court HR, Case of Thlimmenos v. Greece, judgment of 6 April 2000, (unedited version of the
judgment), para. 44; emphasis added.
38Eur. Court HR, Case of Karlheinz Schmidt v. Germany, judgment of 18 July 1994, Series A, No. 291-B, pp.
32-33, para. 24.
39Eur. Court HR, Case of Van Raalte v. the Netherlands, judgment of 21 February 1997, p. 186, para. 39.
40Eur. Court HR, Case of Inze v. Austria, judgment of 28 October 1987, Series A, No. 126, p. 18, para. 41.
Alleged purposes for differential treatment that cannot be objectively
justified and measures that are disproportionate to the attainment of a
legitimate aim are unlawful and contrary to international human rights
law.
To ensure the right to equality, States may have to treat differently
persons whose situations are significantly different.
6. Selected International Case Law
and Legal Comments on the
Right to Equality and the
Prohibition of Discrimination
This section will highlight some of the many cases concerning discrimination
dealt with to date by the major international monitoring bodies. Prime attention
has
been given to bodies of a judicial or quasi-judicial nature.
Some of the cases chosen may seem to be of relatively minor importance,
since many individuals and groups of individuals suffer infinitely greater
discrimination
than some of those whose cases have been considered by the international
monitoring
bodies. However, the case law clearly indicates the path that should be
taken in
other possibly far more serious situations, since it establishes universal
legal
criteria that can and must guide both lawmakers and the legal
professions in the
drafting of laws and the practical enforcement of the right to equality
and the
prohibition of discrimination.
6.1 Race, colour or ethnic origin
6.1.1 Racial slurs
In the Ahmad case, Denmark was found to have violated article 6 of the
International Convention on the Elimination of All Forms of Racial Discrimination.
The author, aDanish citizen of Pakistani origin, complained that he and his
brother had
been called “a bunch of monkeys” by the headmaster and another teacher at
their
school. The incident occurred in the school building after the two boys – who had
allegedly been noisy – refused to comply with the teacher’s request that they
leave the
place where they were waiting with a video camera for a friend who was taking
an
examination.41
41Communication No. 16/1999, K. Ahmad v. Denmark (Opinion adopted on 13 March 2000) in UN doc.
GAOR, A/55/18,
p. 110, para. 2.1.
The author filed a complaint with the police, who discontinued the case on
concluding that the words used did not fall within the scope of Section 266b of
the
Danish Penal Code concerning insulting or degrading remarks.42 The letter from
the
police also stated “that the expression used had to be seen in the context of a
tense
incident [and] should not be understood as insulting or degrading in terms of
race,
colour, national or ethnic origin, since it could also be used of persons of Danish
origin
who had behaved as the author had.”43 The State Attorney subsequently upheld
the
police decision.44
The Committee on the Elimination of Racial Discrimination concluded that
“owing to the failure of the police to continue their investigations, and the final
decision
of the Public Prosecutor against which there was no right of appeal, the author
was
denied any opportunity to establish whether his rights under the Convention had
been
violated. From this it [followed] that the author [had] been denied effective
protection
against racial discrimination and remedies attendant thereupon by the State
party.”45
The Committee recommended that the State party “ensure that the police and
the
public prosecutors properly investigate accusations and complaints relating to
acts of
racial discrimination, which should be punishable by law [according to] article 4
of the
Convention”.46
6.1.2 The right to freedom of movement and residence
In the case of Koptova v. the Slovak Republic, also brought under the
International Convention on the Elimination of Racial Discrimination, the author
complained of violations of the terms of the Convention as a result of resolutions
adopted by two municipalities in Slovakia prohibiting citizens of Romani ethnicity
from
settling in their respective territories. One of the resolutions even forbade Roma
citizens to enter the village.47
After examining the text of the resolutions, the Committee concluded that
they represented a violation of article 5(d)(i) of the Convention, which
guarantees the
right to freedom of movement and residence to all “without distinction as to
race,
colour, or national or ethnic origin”. It found that “although their wording refers
explicitly to Romas previously domiciled in the concerned municipalities, the
context in
which they were adopted clearly indicates that other Romas would have been
equally
prohibited from settling.”48 The Committee noted, however, that the impugned
resolutions were rescinded in April 1999 and that freedom of movement and
residence
is guaranteed under article 23 of the Constitution of the Slovak Republic. It
recommended that the State party “take the necessary measures to ensure that
practices
restricting the freedom of movement and residence of Romas under its
jurisdiction are
fully and promptly eliminated”.49
Lawyers 657
42Ibid., p. 110, paras. 2.2 and 2.4, read in conjunction with p. 116, para. 6.3.
43Ibid., p. 110, para. 2.4.
44Ibid., p. 110, para. 2.5.
45Ibid., p. 116, para. 6.4.
46Ibid., p. 116, para. 9.
47Communication No. 13/1998, A. Koptova v. the Slovak Republic (Opinion of 8 August 2000), in UN doc.
GAOR, A/55/18,
p. 137, paras. 2.1-2.3.
48Ibid., p. 149, para. 10.1.
49Ibid., p. 149, para. 10.3.
6.1.3 Racial and ethnic discrimination in law enforcement
In its concluding observations on the initial, second and third periodic reports
of the United States, the Committee on the Elimination of Racial Discrimination
noted
with concern “the incidents of police violence and brutality, including cases of
deaths as
a result of excessive use of force by law enforcement officials, which particularly
affects
minority groups and foreigners”. It therefore recommended that the State party
“take
immediate and effective measures to ensure the appropriate training of the
police force
with a view to combating prejudices which may lead to racial discrimination and
ultimately to a violation of the right to security of person. The Committee further
[recommended] that firm action is taken to punish racially motivated violence
and
ensure the access of victims to effective legal remedies and the right to seek just
and
adequate reparation for any damage suffered as a result of such actions.”50
The Committee also noted with concern “that the majority of federal, state
and local prison and jail inmates in [the United States] are members of ethnic or
national minorities, and that the incarceration rate is particularly high with
regard to
African-Americans and Hispanics”. It recommended that the State party “take
firm
action to guarantee the right of everyone, without distinction as to race, colour,
or
national or ethnic origin, to equal treatment before the tribunals and all other
organs
administering justice”. It further recommended that the State party “ensure that
the
high incarceration rate is not a result of the economically, socially and
educationally
disadvantaged position of these groups”.51
Lastly, the Committee on the Elimination of Racial Discrimination noted with
concern that, “according to the Special Rapporteur of the UN Commission on
Human
Rights on extrajudicial, summary or arbitrary executions, there is a disturbing
correlation between race, both of the victim and the defendant, and the
imposition of
the death penalty, particularly in states like Alabama, Florida, Georgia, Louisiana,
Mississippi and Texas. It [urged] the State party to ensure, possibly by imposing
a
moratorium, that no death penalty is imposed as a result of racial bias on the
part of
prosecutors, judges, juries and lawyers or as a result of the economically, socially
and
educationally disadvantaged position of the convicted persons.”52
6.1.4 Racial discrimination in ensuring economic, social and
cultural rights
In its concluding observations on the fourteenth periodic report of Denmark,
the Committee on the Elimination of Racial Discrimination stated: “The
Committee is
concerned that equal attention be paid to the economic, social and cultural
rights listed
in article 5 [of the Convention on the Elimination of Racial Discrimination]. It is
particularly concerned by the level of unemployment among foreigners and the
difficult
access to employment of members of ethnic minorities.” The Committee pointed
out
that, “although the State party is not obliged to provide work permits to foreign
50See the unedited version of the concluding observations of the Committee on the Elimination of Racial
Discrimination: United
States of America, in UN doc. CERD/C/59/Misc.17/Rev.3, para. 15.
51Ibid., para. 16.
52Ibid., para. 17.
residents, it has to guarantee that foreigners who have obtained a work permit
are not
discriminated against in their access to employment.”53
The same Committee was particularly stern in its concluding observations on
the tenth, eleventh and twelfth periodic reports of Australia, in which it
expressed
serious concern “at the extent of the continuing discrimination faced by
indigenous
Australians in the enjoyment of their economic, social and cultural rights. The
Committee [remained] seriously concerned about the extent of the dramatic
inequality
still experienced by an indigenous population that represents only 2.1 per cent of
the
total population of a highly developed industrialized State. The Committee
[recommended] that the State party ensure, within the shortest time possible,
that
sufficient resources are allocated to eradicate these disparities.”54
6.2 Gender
6.2.1 The right to represent matrimonial property
The case of Ato del Avellanal v. Peru concerned a Peruvian women who owned
two apartment buildings in Lima and who, by decision of the Supreme Court, was
not
allowed to sue the tenants in order to collect overdue rents because, under
article 168 of
the Peruvian Civil Code, when a women is married, only her husband is entitled
to
represent the matrimonial property before the courts.55 According to the Human
Rights Committee, this violated the following provisions of the International
Covenant
on Civil and Political Rights:
_ article 14(1), which guarantees that “all persons shall be equal before the
courts and
tribunals”, since “the wife was not equal to her husband for purposes of suing in
Court”;
_ article 3, pursuant to which the States parties “undertake to ensure the equal
right of
men and women to the enjoyment of all civil and political rights set forth in
the ...
Covenant”, and article 26, which states that “all persons are equal before the
law and
are entitled without any discrimination to the equal protection of the law.” The
Committee found that the application of article 168 of the Peruvian Civil Code to
the author “resulted in denying her equality before the courts and constituted
discrimination on the ground of sex”.56
6.2.2 Right to respect for family life
In the case of Abdulaziz, Cabales and Balkandali v. the United Kingdom, the
European Court of Human Rights had to decide whether the United Kingdom
immigration laws violated the right to respect for family life as guaranteed by
article 8
taken either alone or in conjunction with the non-discrimination provision
contained in
Lawyers 659
53See UN doc. GAOR, A/55/18, p. 23, para. 67.
54See UN doc. GAOR, A/55/18, pp. 19-20, para. 41.
55Communication No. 202/1986, G. Ato del Avellanal v. Peru (Views adopted on 28 October 1988) in UN
doc. GAOR, A/44/40,
p. 196, paras. 1 and 2.1.
56Ibid., pp. 198-199, paras. 10.1-10.2.
article 14 of the European Convention on Human Rights. The case concerned
three
women who wanted to establish residence in the United Kingdom with their
respective
husbands. When lodging their complaints, the applicants, who were of Malawian,
Philippine and Egyptian origin, were permanent and lawful residents of the
United
Kingdom. Their problems started after they married men of foreign origin who
were
either refused permission to join them in the United Kingdom or to remain there
with
them. The applicants’ husbands were respectively from Portugal, the Philippines
and
Turkey.
With regard to the right to respect for family life as guaranteed by article 8 of
the European Convention, the Court noted that “it was only after becoming
settled in
the United Kingdom, as single persons, that the applicants contracted marriage.”
In its
view,
“The duty imposed by Article 8 cannot be considered as extending to a
general obligation on the part of a Contracting State to respect the choice
by married couples of the country of their matrimonial residence and to
accept the non-national spouses for settlement in that country.
In the present case, the applicants have not shown that there were
obstacles to establishing family life in their own or their husbands’ home
countries or that there were special reasons why that could not be expected
of them.
[...]
There was accordingly no ‘lack of respect’ for family life and, hence, no
breach of Article 8 taken alone.”57
The outcome was different, however, when the Court examined the case
under article 14 in conjunction with article 8 of the Convention. The question
arose
whether, as alleged by the applicant women, these provisions had been violated
“as a
result of unjustified differences of treatment in securing the right to respect for
their
family life, based on sex, race and also – in the case of Mrs. Balkandali – birth”.58
Invoking its well-established case law, the Court held that:
“For the purposes of Article 14, a difference of treatment is discriminatory
if it ‘has no objective and reasonable justification’, that is, if it does not
pursue a ‘legitimate aim’ or if there is not a ‘reasonable relationship of
proportionality between the means employed and the aim sought to be
realised’.”59
However, the Contracting States “enjoy a certain margin of appreciation in
assessing whether and to what extent differences in otherwise similar situations
justify a
different treatment in law”.60
57Eur. Court HR, Case of Abdulaziz, Cabales and Balkandali v. the United Kingdom, judgment of 28 May
1985, Series A, No. 94, p. 34,
paras. 68-69.
58Ibid., p. 35, para. 70.
59Ibid., p. 35, para. 72.
60Ibid., p. 36, para. 72.
It was not disputed that, under the relevant rules, “it was easier for a man
settled in the United Kingdom than for a women so settled to obtain permission
for his
or her non-national spouse to enter or remain in the country for settlement”. The
argument therefore centred on the question whether this difference had an
objective
and reasonable justification.61 The Government argued that the difference in
treatment
was aimed at limiting “primary immigration” and that it was justified “by the
need to
protect the domestic labour market at a time of high unemployment”.62
While
accepting that the aim of protecting the domestic labour market “was without
doubt
legitimate”, the Court took the view that this did not in itself establish the
legitimacy of
the difference made in the rules in force.63 Moreover, “the advancement of the
equality
of the sexes is today a major goal in the member States of the Council of Europe.
This
means that very weighty reasons would have to be advanced before a difference
of
treatment on the ground of sex could be regarded as compatible with the
Convention.”64
After examining the Government’s arguments, the Court stated that it was
“not convinced that the difference that may nevertheless exist between the
respective
impact of men and women on the domestic labour market [was] sufficiently
important
to justify the difference of treatment, complained of by the applicants, as to the
possibility for a person settled in the United Kingdom to be joined by, as the case
may
be, his wife or her husband”.65 While accepting the Government’s argument that
the
rules were also aimed at advancing public tranquillity, the Court was “not
persuaded that this aim was served by the distinction drawn in those rules
between
husband and wives”.66
The Court therefore concluded that the applicants had been victims of
discrimination on the ground of sex in violation of article 14 of the European
Convention on Human Rights read in conjunction with article 8. It further
concluded,
however, that the applicants had not been discriminated against on the ground
of either
race or birth.67
6.2.3 Preferential pension rights
In the Pauger v. Austria case the author had been refused a pension following
the death of his wife on the ground that he was gainfully employed. The author
alleged
that, contrary to article 26 of the International Covenant on Civil and Political
Rights,
the Austrian Pension Act of 1965 “granted preferential treatment to widows, as
they
would receive a pension, regardless of their income, whereas widowers could
receive
pensions only if they did not have any other form of income”.68
Lawyers 661
61Ibid., p. 36, para. 74.
63Ibid., p. 37, para. 78.
64Ibid., p. 38, para. 78.
65Ibid., p. 38, para. 79.
66Ibid., p. 39, para. 81.
67Ibid., p. 39, para. 83, and p. 41, paras. 86 and 89.
68Communication No. 415/1990, D. Pauger v. Austria (Views adopted on 26 March 1992), in UN doc. GAOR,
A/47/40, p. 333,
paras. 1.-2.1
The Human Rights Committee concluded that, contrary to article 26 of the
Covenant, the author “as a widower, was denied full pension benefits on an
equal
footing with widows”.69 In determining whether application in this case of the
Pension
Act “entailed a differentiation based on unreasonable or unobjective criteria”,
the
Committee observed that while Austrian family law imposed equal rights and
duties on
both spouses, with regard to their income and mutual maintenance, the Pension
Act, as
amended in 1985, provided for full pension benefits to widowers only if they had
no
other source of income, a requirement that did not apply to widows. Widowers
would
in fact only be treated on an equal footing with widows as from 1 January 1995.70
In the
Committee’s view, this meant that “men and women whose social circumstances
are
similar are being treated differently, merely on the basis of sex.” Such
differentiation
was not reasonable, as was also “implicitly acknowledged” by the State party
when it
pointed out that “the ultimate goal of the legislation [was] to achieve full
equality
between men and women in 1995”.71
6.2.4 Social security benefits
Article 26 of the International Covenant of Civil and Political Rights was also
violated in the case of S W M. Broeks v. the Netherlands, since Ms. Broeks had
been the
victim of discrimination based on sex in the application of the then valid
Netherlands
Unemployment Benefits Act.72 In order to receive benefits under this law, a
married
woman “had to prove that she was a ‘breadwinner’ – a condition that did not
apply to
married men”. According to the Human Rights Committee, this differentiation
placed
married women at a disadvantage compared with married men and was not
reasonable.73
6.2.5 Contributions to general child-care benefit schemes
In the case of Van Raalte v. the Netherlands, the applicant complained that the
levying of contributions under the Netherlands General Child Care Benefits Act
from
him, an unmarried childless man over 45 years of age, was a violation of article
14 of the
European Convention on Human Rights taken in conjunction with article 1 of
Protocol No. 1 to the Convention because of the fact that no similar contributions
were
exacted at that time from unmarried childless women of the same age.74
The Court had no problem examining this case in the light of article 1 of
Protocol No. 1, since it concerned the right of the State “to secure the payment
of taxes
or other contributions”.75 It further considered that the situation complained of
undoubtedly constituted a “difference in treatment” between persons in similar
69Ibid., p. 336, para. 8.
70Ibid., pp. 335-336, para. 7.4.
71Ibid., p. 336, para. 7.4.
72Communication No. 172/1984, S. W. M. Broeks v. the Netherlands (Views adopted on 9 April 1987), in UN
doc. GAOR,
A/42/40, p. 150, paras. 14-15.
73Ibid., p. 150, para. 14. The same issue arose in Communication No. 182/1984, F. H. Zwaan-de Vries v. the
Netherlands
(Views adopted on 9 April 1987), pp. 160-169.
74Eur. Court HR, Case of Van Raalte v. the Netherlands, judgment of 21 February 1997, Reports 1997-I, p.
183, para. 32.
75Ibid., p. 184, paras. 34-35.
situations, based on gender. The factual difference between the two categories
relied on
by the Government, namely “their respective biological possibilities to
procreate” did
not lead the Court to a different conclusion because it was precisely that
distinction
which was “at the heart of the question whether the difference in treatment
complained
of [could] be justified”.76
The Court noted that a “key feature” of the scheme was “that the obligation to
pay contributions did not depend on any potential entitlement to benefits that
the
individual might have ... Accordingly the exemption in the present case ran
counter to
the underlying character of the scheme.”77
However, the Court concluded that, while the Contracting States “enjoy a
certain margin of appreciation under the Convention as regards the introduction
of
exemptions to such contributory obligations, Article 14 requires that any such
measure,
in principle, applies even-handedly to both men and women unless compelling
reasons
have been adduced to justify a difference in treatment.” The Court was not
persuaded
that such reasons existed in the case before it and concluded that there had
been a
violation of article 14 taken together with article 1 of Protocol No. 1 to the
Convention.78
6.2.6 Parental leave allowance
In the case of Petrovic v. Austria, the outcome was different in that the
European Court of Human Rights concluded that the refusal of the Austrian
authorities to grant parental leave allowance to a father – on the ground that
such
allowance was available only to mothers – did not exceed the margin of
appreciation
granted to the Government under article 14 in conjunction with article 8 of the
Convention.79
The Court pointed out that “at the material time parental leave allowances
were paid only to mothers, not fathers, once a period of eight weeks had elapsed
after
the birth and the right to a maternity allowance had been exhausted” and that it
was not
disputed that this was a differential treatment based on grounds of sex.80
The Court accepted that the two parents were “similarly placed” to take care
of the child during the period concerned. Moreover, considering that
“the advancement of the equality of the sexes is today a major goal in the
member States of the Council of Europe ... very weighty reasons would be
needed for such a difference in treatment to be regarded as compatible
with the Convention.”81
Lawyers 663
76Ibid., p. 186, para. 40.
77Ibid., p. 187, para. 41.
78Ibid., p. 187, paras. 42-43.
79Eur. Court HR, Case of Petrovic v. Austria, judgment of 27 March 1998, Reports 1998-II, p. 588, para. 43.
80Ibid., p. 587, paras. 34-35.
81Ibid., p. 587, paras. 36-37.
The Court noted, however, that
“the Contracting States enjoy a certain margin of appreciation in assessing
whether and to what extent differences in otherwise similar situations
justify a different treatment in law. The scope of the margin of appreciation
will vary according to the circumstances, the subject matter and its
background; in this respect, one of the relevant factors may be the
existence or non-existence of common ground between the laws of the
Contracting States.”82
It was clear, according to the Court, that “at the material time, that is at the end
of the 1980s, there was no common standard in this field, as the majority of the
Contracting States did not provide for parental leave allowances to be paid to
fathers.”
Only gradually had the European States “moved towards amore equal sharing
between
men and women of responsibilities for the bringing up of their children”. “It
therefore
[appeared] difficult to criticise the Austrian legislature for having introduced in a
gradual manner, reflecting the evolution of society in that sphere, legislation
which is,
all things considered, very progressive in Europe.”83 It followed that the Austrian
authorities had not “exceeded the margin of appreciation allowed to them” so
that “the
difference in treatment complained of was not discriminatory within the meaning
of
Article 14.”84
6.2.7 Acquisition of citizenship
In its advisory opinion on the Proposed Amendments to the Naturalization
Provisions
of the Constitution of Costa Rica, the Inter-American Court of Human Rights
concluded
that these amendments constituted discrimination incompatible with articles
17(4)
(equality of rights between spouses during marriage) and 24 (right to equal
protection)
of the American Convention on Human Rights insofar as they favoured only one
of the
spouses. According to article 14(4) of the proposed amendment, “a foreign
women
who, by marriage to a Costa Rican loses her nationality or who after two years of
marriage to a Costa Rican and the same period of residence in the country,
indicates her
desire to take on [that] nationality” would be Costa Rican by naturalization.85 In
the
Court’s view, it would have been be more consistent with the Convention for the
text to
refer to “any ‘foreigner’ who marries a Cost Rican national”.86
82Ibid., p. 587, para. 38.
83Ibid., p. 588, paras. 40-41.
84Ibid., p. 588, para. 43.
85I-A Court HR, Proposed Amendments to the Naturalization Provisions of the Constitution of Costa Rica,
Advisory Opinion OC-4/84 of January
19, 1984, Series A, No. 4, p. 111, para. 67 read in conjunction with p. 82, p. 109, para. 64, and p. 113, point
5.
86Ibid., pp. 111-112, para. 67. Nationality laws must not, of course, discriminate on other grounds either. In
its concluding
observations on the initial, second, third and fourth periodic reports of Estonia, the Committee on the
Elimination of Racial
Discrimination expressed “particular concern that the provisions for restricted immigration quotas
established by the 1993 Aliens Act
apply to citizens of most countries in the world, except those of the European Union, Norway, Iceland and
Switzerland”. It
recommended “that the quota system be applied without discrimination based on race or ethnic or national
origin”, UN doc. GAOR,
A/55/18, p. 25, para. 81.
6.3 Language
The use of language arose in the case of Diergaardt et al. v. Namibia in which
the
authors, all members of the Rehoboth Baster Community, claimed a violation of,
inter
alia, article 26 of the International Covenant on Civil and Political Rights, since
they had
been denied the use of their mother tongue – Afrikaans – in the fields of
administration,
justice, education and public life.87 In this case, where “due weight” had to be
given to
the authors’ allegations in the absence of a Government response, the
Committee
pointed out that the authors had shown that the State party had “instructed civil
servants not to reply to the authors’ written or oral communications with the
authorities in the Afrikaans language, even when they are perfectly capable of
doing
so”. These instructions barred the use of Afrikaans not only for the issuing of
public
documents but also for telephone conversations.88 It followed that the authors,
as
Afrikaans speakers, were victims of a violation of article 26 of the Covenant.89
A person of Breton mother tongue who also spoke French complained of a
violation of article 26 of the Covenant since he was not allowed to use the Breton
language during court proceedings. The Human Rights Committee pointed out,
however, that the author had “not shown that he, or the witnesses called on his
behalf,
were unable to address the tribunal in simple but adequate French”.90 In the
Committee’s view, the right to a fair trial in article 14(1) of the Covenant, read in
conjunction with article 14(3)(f), “does not imply that the accused be afforded
the
possibility to express himself in the language which he normally speaks or
speaks with a
maximum of ease”. If the court is certain, as the two courts were in this case,
“that the
accused is sufficiently proficient in the court’s language, it is not required to
ascertain
whether it would be preferable for the accused to express himself in a language
other
than the court language”.91 According to French law, the author would have been
entitled to the services of an interpreter had he needed it. As that was not the
case, he
was not a victim of a violation of article 26 or of any other provision of the
Covenant.92
In the case of Ballantyne et al. v. Canada, the authors, who were of English
mother tongue but living in Quebec, alleged that the prohibition on their using
English
for advertising purposes was a violation of article 26 of the Covenant. The
Human
Rights Committee concluded that the authors had not been victims of
discrimination
on the ground of their language, since the prohibition applied to both French and
English speakers, so that “a French speaking person wishing to advertise in
English, in
order to reach those of his or her clientele who are English speaking” could not
do so.93
Lawyers 665
87Communication No. 760/1997, J. G. A. Diergaardt et al. v. Namibia (Views adopted on 25 July 2000), in UN
doc. GAOR,
A/55/40 (II), p. 147, para. 10.10.
88Ibid., loc. cit.
89Ibid.
90Communication No. 219/1986, Dominique Guesdon v. France (Views adopted on 25 July 1990), in UN doc.
GAOR, A/45/40 (II),
p. 67, para. 10.3.
91Ibid., loc. cit.
92Ibid., p. 68, paras. 10.4-11.
93Communications Nos. 359/1989 and 385/1989, J. Ballantyne and E. Davidson, and G. McIntyre v. Canada,
in UN doc. GAOR,
A/48/40 (II), p. 103, para. 11.5.
6.4 Religion or belief
6.4.1 Conscientious objection to military service
The Human Rights Committee has consistently held that, under article 8 of
the International Covenant on Civil and Political Rights, States parties “may
require
service of a military character and, in case of conscientious objection, alternative
national service, provided that such service is not discriminatory”.94 In the
case of
F. Foin v. France, the author complained that French law, which required 24
months’
national alternative service for conscientious objectors compared with 12 months
for
military service, was discriminatory and violated the principle of equality before
the law
and equal protection of the law as guaranteed by article 26 of the Covenant.95
The
Committee recognized
“that the law and practice may establish differences between military and
national alternative service and that such differences may, in a particular
case, justify a longer period of service, provided that the differentiation is
based on reasonable and objective criteria, such as the nature of the
specific service concerned or the need for a special training in order to
accomplish that service”.96
In the Foin case, however, the argument invoked by the Government was that
“doubling the length of service was the only way to test the sincerity of an
individual’s
conviction”. In the Committee’s view, such an argument did not satisfy the
requirement “that the difference in treatment ... was based on reasonable and
objective
criteria.” Article 26 of the Covenant had therefore been violated, “since the
author was
discriminated against on the basis of his conviction of conscience”.97
In the case of Järvinen v. Finland, on the other hand, the Committee found no
violation of article 26. The author alleged that he had been discriminated against
since
alternative service lasted for 16 months, compared with only 8 months for
military
service. The length of alternative service had been extended from 12 to 16
months
when the law was changed so that applicants were assigned to civilian service
solely on
the basis of their own declarations without having to prove their convictions.98
The
legislator deemed such prolongation to be “the most appropriate indicator of a
conscript’s convictions”.99 Considering in particular this ratio legis, the
Committee
concluded that “the new arrangements were designed to facilitate the
administration of
alternative service.” The legislation was therefore “based on practical
considerations
and had no discriminatory purpose”.100 The Committee was, however, aware
94See, for example, Communication No. 666/1995, F. Foin v. France (Views adopted on 3 November 1999),
in UN doc. GAOR,
A/55/40 (II), p. 37, para. 10.3; emphasis added.
95Ibid., loc. cit.
96Ibid.
97Ibid. For identical reasoning see Communication No. 689/1996, R. Maille v. France (Views adopted on 10
July 2000), p. 72,
para. 10.4.
98Communication No. 295/1988, A. Järvinen v. Finland (Views adopted on 25 July 1990), in UN doc. GAOR,
A/45/40 (II),
p. 101, para. 2.1, p. 102, para. 3.1, and p. 104, para. 6.1.
99Ibid., p. 102, para. 2.2.
100Ibid., p. 105, para. 6.4.
“that the impact of the legislative differentiation works to the detriment of
genuine conscientious objectors, whose philosophy will necessarily require
them to accept civilian service. At the same time, the new arrangements
were not merely for the convenience of the State alone. They removed
from conscientious objectors the often difficult task of convincing the
examination board of the genuineness of their beliefs; and they allowed a
broader range of individuals potentially to opt for the possibility of
alternative service.”101
*****
A different legal aspect arose in the case of Thlimmenos v. Greece, which had its
origin in the conviction of the applicant – a Jehovah’s Witness – by Athens
Permanent
Army Tribunal of insubordination for refusing to wear military uniform at a time
of
general mobilization. He was sentenced to four years’ imprisonment but released
on
parole after two years and one day.102 The applicant subsequently came second
out of
60 candidates in a public examination for the appointment of 112 chartered
accountants but the Executive Board of the Greek Institute of Chartered
Accountants
refused to appoint him because he had been convicted of a felony.103 The
applicant
unsuccessfully seized the Supreme Administrative Court, invoking, inter alia, his
right
to freedom of religion and equality before the law. The Court decided that the
Board
had acted in accordance with the law when, for the purposes of applying article
22(1) of
the Civil Servants Code, it had taken into consideration the applicant’s
conviction.104
According to this provision, no person convicted of a felony could be appointed
to the
civil service and, on the basis of Legislative Decree No. 3329/1955, as amended,
a
person who did not qualify for appointment to the civil service could not be
appointed
a chartered accountant.105
Before the European Court, the applicant did not complain about his initial
conviction for insubordination but only about the fact “that the law excluding
persons
convicted of a felony from appointment to a chartered accountant’s post did not
distinguish between persons convicted as a result of their religious beliefs and
persons
convicted on other grounds”.106 The Court examined the complaint under article
9
(right to freedom of thought, conscience and religion) and article 14 of the
Convention.
Article 9 was relevant because the applicant was a member of the Jehovah’s
Witnesses,
a religious group committed to pacifism.107 As noted above, the Court observed
in this
case that “the right not to be discriminated against in the enjoyment of the
rights
guaranteed under the Convention is also violated when States without an
objective and
reasonable justification fail to treat differently persons whose situations are
significantly
different.”108 It thus had to examine
Lawyers 667
101Ibid., p. 105, para. 6.5.
102Eur. Court HR, Case of Thlimmenos v. Greece, judgment of 6 April 2000, para. 7 of the text of the
decision as published at the Court’s
web site: http://www.echr.coe.int/
103Ibid., para. 8.
105Ibid., paras. 15-16.
106Ibid., para. 33.
107Ibid., para. 42.
108Ibid., para. 44.
_ “whether the failure to treat the applicant differently from other persons
convicted
of a felony pursued a legitimate aim” and, if it did,
_ “whether there was a reasonable relationship of proportionality between the
means
employed and the aim sought to be realised”.109
The Court noted that “States have a legitimate interest to exclude some
offenders from the profession of chartered accountant.” However, it considered
that
“unlike other convictions for serious criminal offences, a conviction for
refusing on religious or philosophical grounds to wear the military uniform
cannot imply any dishonesty or moral turpitude likely to undermine the
offender’s ability to exercise this profession. Excluding the applicant on
the ground that he was an unfit person was not, therefore, justified.”110
In reply to the Government’s argument “that persons who refuse to serve
their country must be appropriately punished”, the Court pointed out that the
applicant
had already served a prison sentence for his refusal. In these circumstances, the
Court
considered that “imposing a further sanction on the applicant was
disproportionate. It
[followed] that the applicant’s exclusion from the profession of chartered
accountants
did not pursue a legitimate aim. As a result, the Court [found] that there existed
no
objective and reasonable justification for not treating the applicant differently
from
other persons convicted of a felony.”111 There had therefore been a violation of
article
14 of the European Convention taken in conjunction with article 9.
6.4.2 Duty to wear safety gear at work
A man of Sikh religion complained to the Human Rights Committee that his
right to manifest his religion, as recognized by article 18 of the International
Covenant
on Civil and Political Rights, had been violated by the requirement under safety
regulations to wear a hard hat instead of a turban during his work, which
consisted of
the nightly inspection of the undercarriage of trains from a pit located between
the rails,
as well as maintenance work inside and outside the train, such as on the engine.
The
Committee examined the complaint under article 18 of the Covenant and also ex
officio
under article 26, concluding that in both cases the outcome was the same: under
article
18(3) the limitation on the author’s right to manifest his religion was justified by
reference to the grounds laid down in article 18(3), and under article 26 it was a
reasonable measure directed towards objective purposes compatible with the
Covenant.112 It was, in other words, a reasonable and objective measure to
require that
workers in federal employment be protected from injury and electric shock by
the
wearing of hard hats.113
109Ibid., para. 46.
110Ibid., para. 47.
111Ibid., loc. cit.
112Communication No. 208/1986, K. Singh Bhinder v. Canada (Views adopted on 9 November 1989), in UN
doc. GAOR,
A/45/40 (II), p. 54, para. 6.2.
113Ibid., loc. cit.
6.4.3 Public funding of religious schools
The case of A.H. Waldman v. Canada concerned public funding of religious
schools in the province of Ontario in Canada. Ontario Roman Catholic schools are
the
only non-secular schools to receive full and direct public funding, while the
private
Jewish school to which the author sent his two children received nothing, so that
the
author had to pay the entire tuition fee.114 The question arose whether the public
funding of Roman Catholic schools, to the exclusion of schools of the author’s
religion,
constituted a violation of article 26 of the Convention.
The Committee rejected the Government’s argument that the distinction was
based on objective and reasonable criteria because the privileged treatment of
Roman
Catholic schools was enshrined in the Constitution. The Committee noted that
this
distinction dated from 1867 and that there was nothing to show “that members
of the
Roman Catholic community or any identifiable section of that community are
now in a
disadvantaged position compared to those members of the Jewish community
that
wish to secure the education of their children in religious schools”.115 It
concluded
“that the differences in treatment between Roman Catholic religious schools,
which are
publicly funded as a distinct part of the public education system, and schools of
the
authors’ religion, which are private by necessity, cannot be considered
reasonable and
objective”.116
Lastly, the Canadian Government submitted that the aims of its secular public
education system were compatible with the principle of non-discrimination laid
down
in the Covenant, to which the Committee replied “that the proclaimed aims of
the
system do not justify the exclusive funding of Roman Catholic religious
schools”.117 It
observed, furthermore, that “the Covenant does not oblige States parties to fund
schools which are established on a religious basis. However, if a State party
chooses to
provide public funding to religious schools, it should make this funding available
without discrimination. This means that providing funding for the schools of one
religious group and not for another must be based on reasonable and objective
criteria”, which was not the case with regard to the author’s school.118
6.4.4 Lack of public-law status for purposes of bringing
court proceedings
The European Court of Human Rights concluded that article 14 taken
together with article 6(1) of the European Convention of Human Rights had been
violated in the case of Canea Catholic Church v. Greece. The Church in question
had tried to
bring legal proceedings against two persons living next to the cathedral of the
Roman
Catholic diocese of Crete who had demolished one of the walls surrounding the
church.
The purpose of the legal proceedings was to obtain a decision ordering the
defendants
Lawyers 669
114Communication No. 694/1996, A. H. Waldman v. Canada (Views adopted on 3 November 1999), in UN
doc. GAOR,
A/55/40 (II), p. 87, para. 1.2.
115Ibid., p. 97, paras. 10.3-10.4
116Ibid., p. 97, para. 10.5.
117Ibid., p. 97, para. 10.6.
118Ibid., pp. 97-98, para. 10.6.
to cease the nuisance and to restore the previously existing situation.119
However, the
Court of Cassation eventually ruled that the Church had no legal standing since it
had
failed to comply with the State’s laws on the acquisition of legal personality.120
Before the European Court the applicant Church “maintained that it was the
victim of discrimination incompatible with [article 14], since the removal of its
right to
bring or defend legal proceedings was based exclusively on the criterion of
religion”.121
For the Court it was sufficient to note that “the applicant church, which [owned]
its
land and buildings, [had] been prevented from taking legal proceedings to
protect them,
whereas the Orthodox Church or the Jewish community [could] do so in order to
protect their own property without any formality or required procedure.” Article
14
taken in conjunction with article 6(1) of the Convention had been violated since
the
Government had submitted “no objective and reasonable justification for such a
difference of treatment”.122
6.5 Property
The case of Chassagnou and Others v. France considered by the European Court
of Human Rights is a complex case concerning the use of property and hunting
rights in
France. In general, the applicants, who were all farmers and/or landholders living
in
France, maintained that, pursuant to French Law No. 64-696 of 1964, the so-
called
“Loi Verdeille”, “they had been obliged, notwithstanding their opposition to
hunting
on ethical grounds, to transfer hunting rights over their land to approved
municipal
hunters’ associations, had been made automatic members of those associations
and
could not prevent hunting on their properties.” This violated, in their view, article
11 of
the European Convention on Human Rights, article 1 of Protocol No. 1 thereto
and 14
of the Convention “in that only the owners of landholdings exceeding a certain
minimum area could escape the compulsory transfer of hunting rights over their
land to
an approved municipal hunters’ association, thus preventing hunting there and
avoiding becoming members of such an association”.123
For reasons that go beyond the scope of this chapter, the European Court
first concluded that both article 1 of Protocol No. 1 and article 11 had been
violated.124
It also found that there had been a violation of article 1 of Protocol No. 1 taken in
conjunction with article 14 of the Convention, concluding that “since the result of
the
difference in treatment between large and small landowners is to give only the
former
the right to use their land in accordance with their conscience, it constitutes
discrimination on the ground of property, within the meaning of Article 14 of the
Convention.”125 Lastly, the Court found that there had been a violation of article
11
taken in conjunction with article 14, concluding that the Government had not put
119Eur. Court HR, Case of Canea Catholic Church v. Greece, judgment of 16 December 1997, Reports 1997-
VIII, pp. 2847-2848, paras. 6-8.
120Ibid., pp. 2849-2850, para. 13.
121Ibid., p. 2860, para. 44.
122Ibid., p. 2861, para. 47.
123Eur. Court HR, Case of Chassagnou and Others v. France, judgment of 29 April 1999, Reports 1999-III, p.
50, para. 66.
124Ibid., pp. 57-58, para. 85 (on article 1 of Protocol No. 1: there was a disproportionate burden on small
landowners), and p. 67,
para. 117 (art. 11: compulsion to join an association “fundamentally contrary” to one’s convictions).
125Ibid., p. 60, para. 95.
forward “any objective and reasonable justification” for the difference in
treatment,
which obliged small landholders to become members of the municipal hunting
associations but enabled large landholders to evade compulsory membership,
“whether
they exercise their exclusive right to hunt on their property or prefer, on account
of
their convictions, to use the land to establish a sanctuary or nature reserve”.126
6.6 Birth or other status
6.6.1 Social security benefits for married/unmarried couples
The International Covenant on Civil and Political Rights does not require
States parties to adopt social security legislation, but when they do so such
legislation
must comply with article 26 of the International Covenant on Civil and Political
Rights
and any distinctions made in the enjoyment of benefits “must be based on
reasonable
and objective criteria”.127 In the case of M. Th. Sprenger v. the Netherlands, the
author, who
cohabited with a man without being married to him, complained that her right
under
article 26 had been violated since she was “denied co-insurance under the
Health
Insurance Act, which distinguished between married and unmarried couples,
whereas
other social security legislation already recognized the equality of status
between
common law and official marriages”.128
The Committee pointed out, however, that “social developments occur
within the States parties and the Committee has in this context taken note of
recent
legislation reflecting these developments, including the amendments to the
Health
Insurance Act”, which recognized the equality of common law and official
marriages as
of 1 January 1988.129 The Committee also noted the explanation of the State
party that
there had been no general abolition of the distinction between married persons
and
cohabitants, and the reasons given for the continuation of this differential
treatment. It
found this differential treatment to be based on reasonable and objective
grounds.130
Lastly, the Committee observed that “the decision of a State’s legislature to
amend a law
does not imply that the law was necessarily incompatible with the Covenant;
States
parties are free to amend laws that are compatible with the Covenant, and to go
beyond
Covenant obligations in providing additional rights and benefits not required
under the
Covenant.”131
Lawyers 671
126Ibid., p. 68, para. 121. The law created “a difference in treatment between persons in comparable
situations, namely the
owners of land or hunting rights, since those who own 20 hectares or more of land in a single block may
object to the inclusion of
their land in the [municpal hunters’ association’s] hunting grounds, thus avoiding compulsory membership
of the association, whereas
those who, like the applicants, possess less than 20 or 60 hectares of land may not”, p. 68, para. 120.
127Communication No. 395/1990, M. Th. Sprenger v. the Netherlands (Views adopted on 31 March 1992), in
UN doc. GAOR,
A/47/40, p. 321, para. 7.2.
128Ibid., p. 320, para. 3.
129Ibid., p. 322, para. 7.4, read in conjunction with p. 320, para. 2.5.
130Ibid., p. 322, para. 7.4.
131Ibid., p. 322, para. 7.5.
6.6.2 Inheritance rights
The case of Mazurek v. France concerned the provisions in French law limiting
the applicant’s inheritance rights over his mother’s estate compared with those
of his
half-brother. According to the law, children born out of wedlock were entitled to
receive only “half of the share to which they would have been entitled if all the
children
of the deceased, including themselves, had been legitimate” (art. 760 of the Civil
Code).132 The applicant was an adulterine child, while his brother, who was born
out of
wedlock, had been legitimized through his mother’s marriage.
The Court examined the case in the light of an alleged infringement of the
applicant’s right to peaceful enjoyment of his possessions under article 1 of
Protocol
No. 1 to the European Convention on Human Rights, in conjunction with the
principle
of non-discrimination contained in article 14. Article 1 of Protocol No. 1 was
relevant,
since their deceased mother’s estate was the joint property of the half-
brothers.133
In examining whether this difference in treatment was discriminatory, the
Court emphasized that “the Convention is a living instrument which must be
interpreted in the light of present-day conditions” and that “today the member
States of
the Council of Europe attach great importance to the question of equality
between
children born in and children born out of wedlock as regards their civil rights.”134
“Very
weighty reasons would accordingly have to be advanced before a difference of
treatment on the ground of birth out of wedlock could be regarded as compatible
with
the Convention.”135
Although the Court accepted as legitimate the Government’s argument that
the French law was aimed at protecting the traditional family, the question
remained
“whether, regarding the means employed, the establishment of a difference of
treatment between adulterine children and children born in wedlock or out of
wedlock
but not of an adulterous relationship, with regard to inheritance under their
parent,
appears proportionate and appropriate in relation to the aim pursued”.136
The Court then pointed out “that the institution of the family is not fixed, be it
historically, sociologically or even legally” and referred to the legal development
both in
France and at the universal level favouring increased equality between children
of
different descent. Contrary to the assertion of the French Government, the Court
also
noted with regard to the situation in other member States of the Council of
Europe,
that there was “a distinct tendency in favour of eradicating discrimination
against
adulterine children. It [could] not ignore such a tendency in its – necessarily
dynamic –
interpretation of the relevant provisions of the Convention”.137 The Court
therefore
concluded that there was no ground in the instant case on which to justify
discrimination based on birth out of wedlock. In any event, “an adulterine child
cannot
be blamed for circumstances for which he or she is not responsible. It [was] an
132Eur. Court HR, Case of Mazurek v. France, judgment of 1 February 2000, paras. 17 and 23 of the text of
the decision as published at
the Court’s web site: http://www.echr.coe.int/
133Ibid., paras. 41-43.
134Ibid., para. 49.
135Ibid., loc. cit.
136Ibid., paras. 50-51.
137Ibid., para. 52.
inescapable finding that the applicant was penalised, on account of his status as
an
adulterine child, in the division of the assets of the estate”.138 It followed “that
there was
not a reasonable relationship of proportionality between the means employed
and the
aim pursued” and article 14 of the Convention read in conjunction with article 1
of
Protocol No. 1 to the Convention had therefore been violated.139
In the case of Marckx v. Belgium, the European Court of Human Rights also
found, among several other violations, a violation of article 14 of the Convention
read
in conjunction with the right to respect for family life as guaranteed by article 8
insofar
as there was a difference of treatment in Belgian law between “illegitimate” and
“legitimate” children with regard to inheritance rights.140 The second applicant,
Alexandra, had enjoyed only limited rights to receive property from her biological
mother prior to her adoption by the latter and had at no time, either before or
after her
adoption, had any entitlement on intestacy in the estates of members of her
mother’s
family.141 The Court concluded that such differences in treatment lacked
“objective and
reasonable justifications”. There had thus been a violation of article 14 in
conjunction
with article 8 of the Convention.142
The limited capacity of Alexandra’s mother, Paula, to make dispositions in her
daughter’s favour from the date of her recognition of her daughter until her
adoption
also constituted a violation of Paula’s right not to be subjected to discrimination.
In the
view of the European Court, the distinction made in this respect between
unmarried
and married mothers lacked “objective and reasonable justification” and was
therefore
contrary to article 14 read in conjunction with article 8 of the Convention.143 The
limitation on the right of an unmarried mother, as compared with a married
mother, to
make gifts and legacies in favour of her child was also in breach of article 14
taken in
conjunction with article 1 of Protocol No. 1 to the Convention, according to which
everyone has the right to the peaceful enjoyment of his or her possessions.144
6.6.3. Conditions of birth or descent for presidential candidates
In the case brought by the Legal Resources Foundation against Zambia, the
African Commission on Human and Peoples’ Rights had to consider the
Amendment
Act 1996 to the Zambian Constitution, according to which anyone who wished to
contest the office of President of the country had to prove that both parents
were
Zambian citizens by birth or decent. It was alleged that the amendment would
disenfranchise about 35 per cent of the Zambian electorate from standing as
presidential candidates.145
Lawyers 673
138Ibid., para. 54.
139Ibid., para. 55.
140ECHR, Marckx Case v. Belgium, judgment of 13 June 1979, Series A, No. 31, p. 22, para. 48.
141Ibid., pp. 24-25, paras. 55-56.
142Ibid., loc. cit. and p. 26, para. 59.
143Ibid., pp. 26-27, paras. 60-62.
144Ibid., pp. 27-28, paras. 63-65.
145ACHPR, Legal Resources Foundation v. Zambia, Communication No. 211/98, decision adopted during the
29th Ordinary session, 23 April –
7 May 2001, para. 52 of the text of the decision as published at:
The African Commission pointed out that article 2 of the Charter “abjures
discrimination on the basis of any of the grounds set out, among them ‘language
...
national and social origin ... birth or other status’. The right to equality is very
important.
It means that citizens should expect to be treated fairly and justly within the
legal system
and be assured of equal treatment before the law and equal enjoyment of the
rights
available to all other citizens.”146 In the Commission’s view, the right to equality
is also
important because it affects the capacity to enjoy other rights. For example, a
person
who is at a disadvantage because of his or her place of birth or social origin
“may vote
for others but has limitations when it comes to standing for office. In other
words, the
country may be deprived of the leadership and resourcefulness such a person
may bring
to national life.” The Commission noted in this regard “that in a growing number
of
African States, these forms of discrimination have caused violence and social
and
economic instability which has benefited no one”.147
The Commission examined this complaint closely not only under article 2 of
the Charter but also under article 13 concerning the right of every citizen “to
participate
freely in the government of his country, either directly or through freely chosen
representatives”. Looking at the history of Zambia, it concluded that rights that
had
been enjoyed for 30 years could not be “lightly taken away”, and the
retrospective
application of the impugned measure could not be justified under the African
Charter.
“The pain in such an instance is caused not just to the citizen who suffers
discrimination by reason of place of origin” but the right of the citizens of Zambia
to
freely choose their political representatives is violated.148 Articles 2 and 13 of the
Charter as well as the right to equality before the law as guaranteed by article
3(1) had
therefore been violated.
6.7 National origin
The case of Gueye et al v. France was brought by 743 retired Senegalese
members of the French Army who claimed that France had violated article 26 of
the
International Covenant on Civil and Political Rights because its law provided for
“different treatment in the determination of pensions of retired soldiers of
Senegalese
nationality who served in the French Army prior to the independence of Senegal
in
1960” in that they received pensions that were “inferior to those enjoyed by
retired
French soldiers of French nationality”. In the authors’ view, this constituted racial
discrimination.149
While the Committee found no evidence to support the allegation of racial
discrimination, it still had to determine whether the situation complained of fell
within the purview of article 26 on any other ground.150 Notwithstanding the fact
that
“nationality” as such does not figure among the prohibited grounds of
discrimination
enumerated in article 26 of the Covenant, the Committee accepted that a
146Ibid., para. 63.
147Ibid., loc. cit.
149Communication No. 196/1985, I. Gueye et al. v. France (Views adopted on 3 April 1989), in UN doc.
GAOR, A/44/40, p. 189,
paras. 1.1-1.2.
150Ibid., pp. 193-195, para. 9.4.
differentiation based on nationality had been made upon the independence of
Senegal and that this was an issue that fell within the reference to “other
status”. It
therefore had to determine whether the differentiation was based on reasonable
and
objective criteria.151
In so doing, the Committee noted that “it was not the question of nationality
which determined the granting of pensions to the authors but the services
rendered by
them in the past ... A subsequent change in nationality [could] not by itself be
considered as a sufficient justification for different treatment, since the basis for
the
grant of the pension was the same service which both they and the soldiers who
remained French had provided.”152 Considering that there were no other
legitimate
grounds to justify differential treatment, the Committee concluded that the
difference
was “not based on reasonable and objective criteria” and therefore constituted
discrimination prohibited by article 26.153
In a case concerning the expulsion of West Africans from Angola, the African
Commission on Human and Peoples’ Rights pointed out that article 2 of the
African
Charter on Human and Peoples’ Rights requires States parties to ensure that
persons
living in their territory enjoy the rights guaranteed in the Charter regardless of
whether
they are nationals or non-nationals. In the case before the Commission, the
expelled
persons’ right to equality before the law under article 2 of the Charter had been
violated
because of their “origin”.154
6.8 Sexual orientation
The right not to be discriminated against on the basis of one’s sexual
orientation is not expressly covered by the legal provisions considered in this
chapter.
However, the grounds enumerated in, for instance, article 26 of the International
Covenant on Civil and Political Rights, article 2 of the African Charter on Human
and
Peoples’ Rights and article 14 of the European Convention on Human Rights are
not
exhaustive. As is clear from the words “such as” in all these articles, the lists are
illustrative only, a fact that was emphasized by the European Court of Human
Rights in
the case of Salgueiro da Silva Mouta v. Portugal with regard to article 14 of the
European
Convention, in which it ruled that a person’s “sexual orientation” is a concept
which is
undoubtedly covered by that article.155
In this case, the applicant complained that the Lisbon Court of Appeal had
based its decision to award parental responsibility for their daughter to his
former wife
rather than to himself exclusively on the ground of his sexual orientation. The
court of
first instance, the Lisbon Family Affairs Court, had earlier granted parental
Lawyers 675
151Ibid., p. 194, para. 9.4.
152Ibid., p. 194, para. 9.5.
153Ibid., loc. cit.
154ACHPR, Union Inter-Africaine des Droits de l’Homme et al v. Angola, Communication No. 159/96, decision
adopted on 11 November 1997,
para. 18 of the text of the decision as published at the following web site:
http://www1.umn.edu/humanrts/africa/comcases/159-96.html; this case also involved a violation of article
7(1)(a) of the Charter,
since the expelled persons had no opportunity to challenge their expulsion before the competent legal
authorities, paras. 19-20.
155See, for example, Eur. Court HR, Case of Salgueiro da Silva Mouta v. Portugal, judgment of 21 December
1999,Reports 1999-IX, p. 327,
para. 28.
responsibility to the applicant.156 The latter considered that his right to respect
for his
family life had been violated and that he had been discriminated against
contrary to
article 14 of the Convention.
In examining the alleged violation of article 8 taken in conjunction with article
14, the European Court accepted “that the Lisbon Court of Appeal had regard
above all
to the child’s interests when it examined a number of points of fact and of law
which
could have tipped the scales in favour of one parent rather than the other”.
However, in
reversing the decision of the lower Court, “the Court of Appeal introduced a new
factor,
namely that the applicant was a homosexual and was living with another
man”.157
The European Court was “accordingly forced to conclude” that there was a
difference of treatment between the applicant and his ex-wife that was based on
the
applicant’s sexual orientation. It therefore had to consider whether this
difference in
treatment had an objective and reasonable justification, i.e. (1) whether it
pursued a
“legitimate aim” and, if so, (2) whether there was “a reasonable relationship of
proportionality between the means employed and the aim sought to be
realised”.158
The Court concluded that the aim “undeniably pursued” by the decision of
the Lisbon Court of Appeal was legitimate, in that it was for the protection of the
health
and rights of the child.159 But was it reasonably proportionate to this aim? The
Court
concluded that it was not.160 It took the view that the relevant passages from the
judgment of the Lisbon Court of Appeal “were not merely clumsy or
unfortunate ... or
mere obiter dicta”. They suggested, quite to the contrary, “that the applicant’s
homosexuality was a factor which was decisive in the final decision”. Such a
distinction
based on considerations regarding the applicant’s sexual orientation was “not
acceptable under the Convention”.161 It followed that there had been a violation
of
article 8 of the European Convention taken in conjunction with article 14.162
6.9 Minorities
6.9.1 Right to one’s own culture
The Human Rights Committee has established that article 27 of the
International Covenant on Civil and Political Rights “requires that a member of a
minority shall not be denied the right to enjoy his culture”. Thus, “measures
whose
impact amounts to a denial of the right are incompatible with the obligations
under
article 27”. However, “measures that have a certain limited impact on the way of
life
and the livelihood of persons belonging to a minority will not necessarily amount
to a
denial of the rights under article 27.”163
156Ibid., pp. 324-325, paras. 21-22.
157Ibid., p. 327, para. 28.
158Ibid., p. 327, paras. 28-29.
159Ibid., p. 327, para. 30.
160Ibid., p. 328, para. 36.
161Ibid., p. 328, paras. 35-36.
162Ibid., p. 329, para. 36.
163Communication No. 671/1995, J. E. Länsman et al. v. Finland (Views adopted on 30 October 1996), in UN
doc. GAOR,
A/52/40 (II), p. 203, para. 10.3.
The rights of minorities to their own culture was at issue in the case of
Länsman et al v. Finland, which was submitted by reindeer breeders of Sami
ethnic origin
who complained about the decision to carry out logging in an area covering
about 3,000
hectares situated within their rightful winter herding lands. In their view, this
decision
violated their rights under article 27 of the Covenant. The “crucial question” that
the
Committee had to decide was whether the logging that had already been carried
out, as
well as such logging as had been approved for the future, was “of such
proportions as to
deny the authors the right to enjoy their culture” as guaranteed by article 27.164
The
Committee recalled in this regard the terms of paragraph 7 of its General
Comment on
article 27, “according to which minorities or indigenous groups have a right to
the
protection of traditional activities such as hunting, fishing or reindeer husbandry,
and
that measures must be taken ‘to ensure the effective participation of members
of
minority communities in decisions which affect them’”.165
However, after “careful consideration” of the case, the Committee was unable
to conclude “that the activities carried out as well as approved [constituted] a
denial of
the authors’ right to enjoy their own culture”. It was uncontested that the
Herdsmen’s
Committee, to which the authors belonged, had been consulted in the process of
the
drawing up of the logging plans and had not disavowed them. Furthermore, the
domestic courts had considered whether the proposed logging would constitute
a
violation of article 27 of the Covenant, and there was nothing to suggest that
those
courts had “misinterpreted and/or misapplied” the article.166
The Committee added, however, that if logging were to be approved on a
wider scale or if it could be shown that the effects of the planned logging were
more
serious than foreseen, “then it may have to be considered whether it would
constitute a
violation of the authors’ right to enjoy their own culture within the meaning of
article
27.”167
6.9.2 Right to reside in an Indian reserve
One of the early cases decided by the Human Rights Committee was that of
Lovelace v. Canada, brought by a women who was born and registered as a
Maliseet
Indian but who, in accordance with the Canadian Indian Act, had lost her rights
and
status as an Indian after marrying a non-Indian. As a man who married a non-
Indian
woman did not lose his Indian status, the author claimed that the Indian Act was
discriminatory and violated, inter alia, articles 26 and 27 of the Covenant. 168
Even after
her divorce, the author was not allowed to move back to her tribe.
Lawyers 677
164Ibid., p. 203, para. 10.4.
165Ibid., loc. cit. The relevant paragraph of General Comment No. 23 actually reads as follows: “With regard
to the exercise of
the cultural rights protected under article 27, the Committee observes that culture manifests itself in many
forms, including a
particular way of life associated with the use of land resources, especially in the case of indigenous peoples.
That right may include
such traditional activities as fishing or hunting and the right to live in reserves protected by law. The
enjoyment of those rights may
require positive legal measures of protection and measures to ensure the effective participation of members
of minority communities
in decisions which affect them”, United Nations Compilation of General Comments, p. 149, footnote omitted.
166Communication No. 671/1995, J. E. Länsman et al., in UN doc. GAOR, A/52/40 (II), p. 203-4, para. 10.5.
167Ibid., p. 204, para. 10.7.
168Communication No. R.6/24, S. Lovelace v. Canada (Views adopted on 30 July 1981), in UN doc. GAOR,
A/36/40, p. 166,
para. 1.
Although the Committee was not competent to examine the original cause of
the author’s loss of Indian status in 1970, since the Covenant only entered into
effect
with regard to Canada on 19 August 1976, it could consider the continuing
effects of
that cause and examine their consistency with the terms of the Covenant.169 The
Committee actually considered the communication exclusively in the light of
article 27,
the relevant question being whether the author, because she was “denied the
legal right
to reside on the Tobique Reserve, [had] by that fact been denied the right
guaranteed by
article 27 to persons belonging to minorities, to enjoy their own culture and to
use their
own language in community with other members of their group.”.170
Considering the case in the light of the fact that the author’s marriage to a
non-Indian had broken up, the Committee concluded that she had been denied
the
legal right to reside on the Tobique Reserve contrary to article 27 of the
Covenant.171
Although article 27 does not guarantee as such the right to live on a reserve,
the Committee held that
“statutory restrictions affecting the right to residence on a reserve of a
person belonging to the minority concerned, must have both a reasonable
and objective justification and be consistent with the other provisions of
the Covenant, read as a whole. Article 27 must be construed and applied in
the light of the other provisions ... such as articles 12, 17 and 23 in so far as
they may be relevant to the particular case, and also the provisions against
discrimination, such as articles 2, 3 and 26, as the case may be.”172
It did not seem to the Committee “that to deny Sandra Lovelace the right to
reside on the reserve [was] reasonable, or necessary to preserve the identity of
the tribe.
The Committee therefore [concluded] that to prevent her recognition as
belonging to
the band [was] an unjustifiable denial of her rights under article 27 ... read in the
context
of the other provisions referred to.”173
This chapter has undertaken a general survey of major legal provisions at the
universal and regional levels that deal with the widespread and multidimensional
phenomenon of discrimination. It has also provided examples from international
case
law of the varied situations that may – or may not – amount to unjustified
differentiation, that is to say discrimination. Discriminatory incidents or practices
always affect the victim or victims in a particularly negative way because they
constitute
more often than not a denial of their distinctive human characteristics and thus
negate
169Ibid.,
p. 172, paras. 10-11.
170Ibid.,
p. 173, para. 13.2.
171Ibid.,
p. 174, paras. 17 and 19.
172Ibid.,
pp. 173-174, paras. 15-16.
173Ibid.,
p. 174, para. 17. For the response of the Government of Canada, dated 6 June 1983, to the Views
adopted by the
Committee in the Lovelace case, see UN doc. GAOR, A/38/40, pp. 249-253.
their intrinsic right to be different among human beings who all have equal
value,
independently of the colour of their skin or of their origin, gender, religion and so
forth.
This chapter has shown that international legal provisions guaranteeing the
right to equality and non-discrimination are plentiful. Thus, if discriminatory
practices
persist around the world, it is not for the lack of legal rules but rather for lack of
implementation of these rules in the everyday life of our societies. Inevitably,
this failure
to implement some of the most fundamental principles of international human
rights
law at the domestic level also has a negative impact on both internal and
international
peace and security.
Domestic judges, prosecutors and lawyers have a professional duty to turn
existing domestic legal provisions on the right to equality and non-discrimination
into
truly effective legal concepts and, whenever they are competent to do so, they
must also
apply, or at least be guided by, international legal rules on these matters. If this
were
done consistently and effectively, there would be a genuine possibility of slowly
turning
the world into a friendlier place for all.
Lawyers 679
.........Chapter 14
THE ROLE OF THE
COURTS IN PROTECTING
ECONOMIC, SOCIAL AND
CULTURAL RIGHTS ...............
Learning Objectives
_ To familiarize the participants with the main international legal
instruments
protecting economic, social and cultural rights
_ To explain to the participants the intrinsic relationship between
economic, social and
cultural rights, on the one hand, and civil and political rights, on the other
_ To acquaint the participants with the nature of States parties’ legal
obligations with
respect to the enforcement of economic, social and cultural rights
_ To inform the participants of the content of some economic, social and
cultural rights
_ To discuss with the participants the question of justiciability of economic,
social and
cultural rights
_ To familiarize the participants with the important role of domestic courts
in
protecting economic, social and cultural rights
_ To increase the participants’ awareness of their potential as judges and
lawyers to
contribute to the enforcement of economic, social and cultural rights at
the domestic
level
Questions
_ How are economic, social and cultural rights protected and enforced in
the country in
which you work?
_ What role do the courts play in the enforcement of these rights?
_ What mechanisms other than the courts exist in your country for the
promotion
and/or enforcement of economic, social and cultural rights?
_ What aspects of economic, social and cultural rights are particularly
relevant in the
country in which you work?
Lawyers 681
Questions (cont.d)
_ Are there any vulnerable groups that are in particular need of legal
protection in the
field of economic, social and cultural rights?
_ If so, who are they and in what sense do they need special protection?
_How, if at all, is this protection provided? Is it efficient?
_How would you envisage a remedy at the domestic level for efficiently
protecting a
person’s economic, social and cultural rights?
_ Additional Protocol to the American Convention on Human Rights in
the Area of Economic, Social and Cultural Rights, 1988
_ European Social Charter, 1961, and European Social Charter (Revised),
1996
Chapter 14 • The Role of the Courts in Protecting Economic, Social and Cultural Rights
1. Introduction
The principal aim of this chapter is to describe the important role played by
international monitoring bodies and domestic courts in contributing to the
protection
of economic, social and cultural rights at the national level.
The chapter will begin, however, by explaining in general terms why the
original single human rights covenant was ultimately split into two covenants,
one
guaranteeing civil and political rights and the other protecting economic, social
and
cultural rights. It will then briefly describe the intrinsic relationship between
these two
categories of rights, which depend on each other for their mutual and effective
realization. Thirdly, the chapter will undertake a survey of the economic, social
and
cultural rights guaranteed by the universal and regional human rights treaties
and
analyse the legal obligations of States to protect these rights. Fourthly, it will
discuss the
legal nature of economic, social and cultural rights, including their justiciability.
This
will be followed by an examination of the interpretation by the international
monitoring
bodies of the right to adequate housing and the right to health. In this
connection,
reference will be made to examples from domestic case law which show that
courts are
increasingly called upon to adjudicate questions appertaining to the field of
economic,
social and cultural rights. The chapter will conclude with a description of the
important
role played by the legal professions in ensuring the effective protection of these
rights.
*****
It should be noted that, notwithstanding their fundamental importance, this
chapter will not deal with the many conventions and recommendations adopted
within
the framework of the International Labour Organization, which provide extensive
protection of workers’ rights. However, a list of some major ILO Conventions is
contained in Handout No. 1.
2. History Revisited: Why are
there Two International
Covenants on Human Rights?
2.1 A chronological overview
The hard lessons learnt from the Second World War are reflected in the
Charter of the United Nations, which emphasizes that international peace and
stability
are conditional upon the promotion of
_ “higher standards of living, full employment, and conditions of economic and
social
progress and development” (Art. 55(a));
Lawyers 683
_ “solutions of international economic, social, health, and related problems; and
international cultural and educational co-operation” (Art. 55(b)); and
_ “universal respect for, and observance of, human rights and fundamental
freedoms
for all without distinction as to race, sex, language, or religion” (art. 55(c)).
It is logical that this awareness of the need to satisfy all major dimensions of
the human person also came to be reflected in the 1948 Universal Declaration of
Human Rights, which not only includes the more traditional civil and political
rights but
also a number of economic, social and cultural rights such as the right to work,
the right
to social security, the right to an adequate standard of living and the right to
education
(arts. 22-27).
The goal pursued in drafting an international covenant on human rights was
to translate the rather generally worded rights contained in the Universal
Declaration
into more detailed and legally binding undertakings. The Commission on Human
Rights swiftly set about drafting the civil and political rights to be contained in
the
covenant, and at its fifth session in 1949 adopted, by 12 votes to none, but with
3
abstentions, a resolution in which it stated the view that it was necessary also to
include
provisions on the enjoyment of economic and social rights in the covenant.1
However,
following the debate at its sixth session in 1950, the Commission reversed its
view and
decided, by 13 votes to 2, not to include economic, social and cultural rights in
the first
covenant, which was to be limited to civil and political rights. This covenant was
to be
“the first of the series of covenants and measures to be adopted in order to
cover the
whole of the Universal Declaration”.2 It had now clearly dawned on the
Commission,
which was under considerable pressure to show the peoples of the world that it
could
produce tangible results, that it would be extremely difficult to draw up a legally
binding
document that also covered the complex spectrum of economic, social and
cultural
rights within a short time.
During the fifth session of the General Assembly in 1950, the question of
whether one or two covenants should be elaborated was discussed in the Third
Committee. A majority was in favour of including the two categories of rights in
one
and the same covenant.3 On the recommendation of the Third Committee, the
General
Assembly adopted resolution 421(V) in which it declared that “the Covenant
should be
drawn up in the spirit and based on the principles of the Universal Declaration of
Human Rights [which] regards man as a person, to whom civic and political
freedoms
as well as economic, social and cultural rights indubitably belong”. It added that
“the
enjoyment of civic and political freedoms and of economic, social and cultural
rights
are interconnected and interdependent” and that “when deprived of economic,
social
and cultural rights, man does not represent the human person whom the
Universal
Declaration regards as the ideal of the free man”. For all these reasons, the
General
Assembly decided to include economic, social and cultural rights in the covenant
on
human rights as well as an explicit recognition of the equality of men and women
in
related rights. It therefore called on the Economic and Social Council “to request
the
1UN doc. E/1371 (E/CN.4/350), Report of the fifth session of the Commission on Human Rights, 1949, p. 15.
The vote was 12
to none, with 3 abstentions.
2For the discussion in the Commission of Human Rights at its sixth session of the question of the inclusion of
economic, social
and cultural rights in the covenant, see UN docs. E/CN.4/SR.181 and 184-187; for the vote see UN doc.
E/CN.4/SR.186, p. 21.
3See, for example, GAOR, fifth session, 1950, Third Committee, docs. A/C.3/SR.297-299 and 313.
Commission on Human Rights, in accordance with the spirit of the Universal
Declaration, to include in the draft Covenant a clear expression of economic,
social and
cultural rights in a manner which relates them to the civic and political freedoms
proclaimed by the draft covenant”. Resolution 421 (V) as a whole was adopted
by 38
votes to 7, with 12 abstentions, and section (E) thereof, which contained the
ruling on
economic, social and cultural rights, was adopted by 35 votes to 9, with 7
abstentions.4
There was, in other words, at the time a large majority in favour of drafting just
one legal
instrument embracing civil, political, economic, social and cultural rights.
In response to the request by the General Assembly, the Economic and Social
Council decided by resolution 349 (XII) to ask the Commission on Human Rights
to
prepare “a revised draft Covenant on the lines indicated by the General
Assembly”.
At its seventh session in 1951, despite the General Assembly resolution, the
Commission started its work by extensively debating the question whether or not
to
introduce economic, social and cultural rights into the covenant, which already
contained eighteen articles on civil and political rights.5 It eventually proceeded
with the
drafting of a single covenant, adding to the already existing civil and political
rights a
number of economic, social and cultural rights.6 However, the debate in the
Commission shows that the answer to why there are two covenants rather than
only
one is more complex than is sometimes believed.
After considering the Commission’s report, the Economic and Social
Council, in view of “the difficulties which may flow from embodying in one
covenant
two different kinds of rights and obligations”, invited the General Assembly “to
reconsider its decision in resolution 421 E (V) to include in one covenant articles
on
economic, social and cultural rights, together with articles on civic and political
rights”
(ECOSOC resolution 384 C (XIII)).
During its sixth session, after a very long and, in political terms, increasingly
polarized discussion that was tainted by profound distrust between, in particular,
the
Socialist countries and some of the Western States, the General Assembly
requested the
Economic and Social Council “to ask the Commission on Human Rights to draft
two
Covenants on Human Rights, to be submitted simultaneously for the
consideration of
the General Assembly at its seventh session, one to contain civil and political
rights and
the other to contain economic, social and cultural rights”. The covenants were to
be
approved by the General Assembly at the same time “in order to emphasize the
unity of
the aim in view and to ensure respect for and observance of human rights”
(General
Assembly resolution 543(VI)). The Commission therefore proceeded at its eighth
session in 1952 with the drafting of two covenants.
Lawyers 685
4GAOR, fifth session, 1950, Plenary Meetings, doc. A/PV.317, p. 564, paras. 170 and 162.
5For details of the discussion, see in particular UN docs. E/CN.4/SR.203-208, 237 and 248.
6See UN doc. E/1992 (E/CN.4/640), Report of the seventh session of the Commission on Human Rights,
1951, Annexes,
pp. 57-85.
2.2 The substance of the debates
It should be noted at the outset that neither the importance of economic,
social and cultural rights nor their intrinsic relationship with civil and political
rights was
challenged by the speakers. However, once the Commission began work on the
drafting of the covenant, it soon became apparent that the very nature of
economic,
social and cultural rights made it impossible to discuss their substance without
also
discussing their implementation and hence whether they should be included in
the
same covenant as civil or political rights or in a separate treaty.
2.2.1 Principal arguments in favour of one covenant
The most important argument advanced by the countries that favoured a
single covenant was the need for unity of rights, since civil and political
rights and
economic, social and cultural rights formed an indivisible whole. Some countries
believed that two covenants would weaken the moral authority of the Universal
Declaration, which reflected the interdependence of rights.7 These countries
considered in general that the distinction between civil and political rights, on
the one
hand, and economic, social and cultural rights, on the other, was artificial and
that the
former would have no meaning or value without the latter.8 Several of them
thought
that the question of whether one or two covenants should be drafted had been
closed
by General Assembly resolution 421(V) and should not be reopened.9 It was
further
argued that “all those countries who opposed a single covenant automatically
rejected
the fundamental unity of economic, social and cultural rights with civil and
political
rights”10 and that “a few States, including Canada, France, the United Kingdom
and the
United States of America [placed] their national interest above every other
consideration [and] were trying to segregate the economic, social and cultural
rights.”11
Some countries also feared that the suggestion that the two covenants should be
adopted and opened for ratification simultaneously would cause considerable
delay in
ratification. The idea was rejected by the USSR as nothing but “an attempt to
shelve
economic, social and cultural rights”. In its view, the United States and the
United
Kingdom were “again resorting to the sabotage and delaying manoeuvres to
which they
had had recourse in the case of the Universal Declaration of Human Rights”.12
7In this connection see, for example, GAOR, fifth session, 1950, Third Committee, doc. A/C.3/SR.297, p. 174,
paras. 35-41 (Poland);
pp. 175-176, paras. 48-60 (USSR); doc. A/C.3/SR.298, p. 178, paras. 9-15 (Mexico); pp. 178-179, paras. 16-
19 (Yugoslavia); p. 181,
para. 49 (Iran); pp. 182-183, paras. 63-65 (Iraq); GAOR, sixth session, 1951-1952, Third Committee, doc.
A/C.3/SR.360, p. 81,
para. 44 (Mexico); doc. A/C.3/SR.366, p. 114, paras. 13-14 (Indonesia); doc. A/C.3/SR.366, p. 116, paras. 37-
40 and
doc. A/C.3/SR.393, p. 275, para. 46 (Cuba). For other countries favouring a single covenant, see, for
example, GAOR, fifth session,
1950, Third Committee, doc. A/C.3/SR.299, p. 187, para. 27 (Saudi Arabia); p. 187, para. 31
(Czechoslovakia); p. 188, para. 40
(Argentina); p. 189, para. 53 (Syria).
8See, for example, UN doc. E/CN.4/203, p. 22 (Ukrainian SSR); GAOR, fifth session, 1950, Third Committee,
doc. A/C.3/SR.297,
p. 176, paras 69-72 (Chile); doc. A/C.3/SR.298, p. 178, para. 13 (Mexico); GAOR, sixth session, 1951-1952,
Third Committee, doc.
A/C.3/SR.362, p. 91, para. 23 (Iraq); doc. A/C.3/SR.368, p. 127, paras.1-2 (Byelorussian SSR); p. 130, paras.
30-31 (Poland); doc.
A/C.3/SR.370, p. 135, para. 3, and doc. A/C.3/SR.395, p. 285, paras. 2-4 (USSR); doc. A/C.3/SR.393, p. 272,
paras. 10-11 (Saudi
Arabia).
9See, for example, GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.367, p. 123, para. 24
(Ukrainian SSR);
doc. A/C.3/SR.368, p. 127, paras.1-2 (Byelorussian SSR); p. 130, para. 38 (Poland).
10GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.365, p. 108, para. 8 (Yugoslavia);
11GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.368, p. 127, para. 1 (Byelorussian SSR).
12GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.370, pp. 135-136, para. 6. On fears of
delay in linking the two
covenants, see also doc. A/C.3/SR.366, p. 118, para. 57 (Czechoslovakia) and doc. A/C.3/SR.393, p. 272,
para. 16 (Syria).
Differences of view existed with regard to the implementation mechanism in
a single covenant containing both civil and political and economic, social and
cultural
rights. While some wanted a uniform implementation mechanism,13 others
wanted
different implementation machinery for the two categories of rights.14 In the
opinion of
the USSR, however, “there was only one method of implementation which
conformed
with international law” and that was “the adoption by governments, in their
territories,
of all the legislative and other measures needed to guarantee peoples the
enjoyment of
all their rights”.15 With regard to the enforcement problem, the USSR also denied
that
“it would be easier to implement civil and political rights since legislative action
was all
that was needed” and cited examples in support of its opinion.16
2.2.2 Principal arguments in favour of two covenants
As noted above, the countries arguing for the elaboration of two covenants
also emphasized the intrinsic relationship between the two categories of rights
as well as
the need for an international instrument that also guaranteed economic, social
and
cultural rights. In order to stress the equal value of these rights, they wanted the
two
covenants to be opened for signature simultaneously.17 However, some speakers
warned against confusing “the unity of the rights themselves with uniform
enforcement” because there was “a distinction between the unity of human
rights in
principle and their separation in practice”.18
Many of the countries favouring a separate covenant on economic, social and
cultural rights19 considered that it would be better to finalize the covenant on
civil and
political rights since any attempt to draft a treaty covering all rights might entail
a
considerable delay.20 However, the major argument in support of their opinion
was
that, because of their specific nature, economic, social and cultural rights were
more
difficult to define than civil and political rights, that it was more complex and
time-consuming to enforce economic, social and cultural rights, and that a
different
mechanism was therefore needed for their implementation.21 According to
Liberia, it
Lawyers 687
13GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.365, p. 108, para. 9 (Yugoslavia).
14GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.360, p. 79, para. 23 (Guatemala); doc.
A/C.3/SR.393, p. 273,
para. 30 (Philippines);.
15GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.370, p. 135, para. 5.
16Ibid., p. 135, para. 4.
17See, for example, GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.363, p. 98, para. 8
(Netherlands); see also the
amendment submitted by Belgium, India, Lebanon and the United States in UN docs. A/C.3/L.184 and
A/C.3/L.184/Rev.1, as well
as the statement by Lebanon, in GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.370, pp.
138-139, paras. 35-37.
18GAOR, sixth session 1951-1951, Third Committee, doc. A/C.3/SR.394, pp. 280-281, para. 20 (Lebanon).
19For countries favouring two or even more covenants, see, for example, UN doc. E/CN.4/SR.205, pp. 8-9
(Denmark); GAOR,
fifth session, 1950, Third Committee, doc. A/C.3/SR.297, p. 172, para. 17 (USA); p. 173, para. 29
(Netherlands); p. 174, para. 34 (United
Kingdom); doc. A/C.3/SR.298, p. 180, paras. 39-40 (Venezuela); p. 182, para. 60 (Dominican Republic); doc.
A/C.3/SR.299, p. 186,
paras. 8-12 (India).
20GAOR, fifth session, 1950, Third Committee, doc. A/C.3/SR.297, p. 172, para. 17 (United States); p. 174,
para. 34 (United
Kingdom); doc. A/C.3/SR.298, p. 182, para. 60 (Dominican Republic); doc. A/C.3/SR.299, p. 186, para. 10
(India); GAOR, sixth
session, 1951-1952, Third Committee, doc. A/C.3/SR.362, p. 89, para. 3 (Denmark); p. 91, para. 32
(Canada); doc. A/C.3/SR.367, p. 123,
para. 25 (Dominican Republic).
21See, for example, the proposal by Denmark, in UN doc. E/CN.4/SR.205, p. 9; see also, for example, the
view of Australia on
the need for a different form of implementation of economic, social and cultural rights in UN doc.
E/CN.4/SR.203, p. 21 and
GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.363, pp. 100- 101, paras. 39-41. At an
early stage, however, Australia
was inclined to favour one covenant, see UN doc. E/CN.4/SR.203, p. 21. See also UN doc. E/CN.4/SR.248, p.
10 (United
would “be useless to attempt to include civil and political rights and economic,
social
and cultural rights in one instrument” because, in so doing, one would fail to take
into
account “the unequal degree of development of the various States composing
the
world community”.22
Some countries submitted that, while appropriate legislative and
administrative action would in principle be sufficient to protect civil and political
rights,
the protection of many economic, social and cultural rights depended, inter alia,
on the
financial resources and stage of development of each country and required
social
reforms, more or less long-term plans and possibly international cooperation.23 It
was
also observed in this context that Governments generally have a much more
active role
to play in ensuring economic, social and cultural rights since they are responsible
for the
material well-being of their citizens, while they have a more passive role to fulfil
with
regard to the implementation of civil and political rights, which call for the
restraining
of governmental powers vis-à-vis the individual.24
In explaining the greater difficulties involved in giving effect to economic and
social rights and the resultant need for progressive implementation, the
representative
of France pointed out that it had taken his country “no less than forty years to
evolve a
more or less complete system of social security”25 and that “the struggle against
illiteracy, for instance, demanded the setting up of schools and the training of
teachers,
a task which in certain countries might require 20 to 25 years.”26 In the view of
France,
ratification of the draft covenant would not be facilitated by ignoring the fact that
the
realization of economic, social and cultural rights always took time.27 The United
States
also pointed out that rights such as medical care and access to education
“depended
very much on resources of finance, equipment and personnel, which were
undoubtedly
not available in sufficient measures in all countries”.28
Some countries also rejected as untenable the argument that civil and political
rights had no value in themselves, and Lebanon emphasized that these rights
had an
absolute character which the other rights did not, although they were
complementary.29
Kingdom); GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.360, p. 78, paras. 9-12 (United
States); doc. A/C.3/SR.362,
p. 89, para. 3 (Denmark); p. 91, paras. 27-31 (Canada); doc A/C.3/SR.367, p. 121, paras. 3-5 (New Zealand).
France considered that
economic, social and cultural rights “were very different in character, and that a whole legislative and
technical structure was required
to translate them into practice”, see UN doc. E/CN.4/203, p. 10.
23In this connection see, for example, UN doc. E/CN.4/SR.205, p. 10 (Denmark); GAOR, fifth session, 1950,
Third Committee,
doc. A/C.3/SR.298, pp. 177-178, paras. 6-8 (France) (France had an “open mind” as to the number of
covenants, “although at first
sight it would appear that two parallel documents might be preferable”, para. 7); p. 98, para. 14 (France);
GAOR, sixth session,
1951-1952, Third Committee, doc. A/C.3/SR.360, p. 78, paras. 9-13 (USA); doc. A/C.3/SR.362, p. 91, paras.
30-31 (Canada).
24See, for example, UN doc. E/CN.4/SR.207, p. 10 (Denmark); GAOR, sixth session, 1951-1952, Third
Committee, doc.
A/C.3/SR.367, p. 121, para. 3 (New Zealand). See also the statement by Venezuela to the effect that “the
effective implementation of
civil and political rights depended on the goodwill of the State and its subjects; whereas such goodwill was
in itself inadequate for the
implementation of economic, social and cultural rights”, p. 122, para. 12.
25UN doc. E/CN.4/SR.237, p. 7.
26UN doc. E/CN.4/SR.203, p. 11.
27UN doc. E/CN.4/SR.237, p. 8.
28UN doc. E/CN.4/SR.203, p. 15.
29GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.370, p. 139, paras. 36-37.
2.2.3 Pleadings in favour of a practical solution
As underlined by some countries, there was an apparent need to find middle
ground between a general enumeration of rights such as that already contained
in the
Universal Declaration of Human Rights and unduly detailed provisions that would
prevent many countries from ratifying the covenant.30 Uruguay advocated a
realistic
approach: “The principal matter of concern was that international protection
should be
extended immediately to the greatest possible number of human rights by the
greatest
possible number of States.”31 In a similar vein France warned against “the
danger of
undue delay in producing at least a first draft covenant, limited in scope though
it might
be”,32 and emphasized the need to ensure the universality of the Universal
Declaration
by having as many countries as possible ratify the provisions adopted.33
Thus, throughout the debates, France adopted a practical approach, arguing
that it would be “an unpardonable anachronism” not to adopt a covenant
containing
economic, social and cultural rights, whether jointly or separately with civil and
political
rights. It was a matter of finding the “right path”, which could only be done by
“progressive efforts”.34 The debate had shown that what was important was “the
essential unity of all human rights, a unity which had inspired the Universal
Declaration
of Human Rights itself”. However, “that unity did not necessarily extend to
technicalities [and] the question whether there should be one covenant or two
was an
essentially technical matter [because] two or more covenants on human rights
could
well be interlinked by a common underlying design.”35 France also observed that
“some
of the partisans of unity à outrance had not perhaps altogether lived up to their
principles,” as when they had “disdained” the inclusion of the right to freedom
from
arbitrary arrest in the covenant.36 On the other hand, it also considered that the
partisans of two covenants tended to exaggerate the differences between civil
and
political rights, on the one hand, and economic, social and cultural rights, on the
other,
because “among the latter there were many susceptible of immediate
implementation”.37 It was important “not to be hypnotized by differences in the
origin
and development of various rights, and the only truly valid criterion was
whether, and
on what conditions, any given right could be implemented”.38 The adoption of
two
covenants “was therefore permissible on grounds of convenience” in that it
would
“reduce the number of points of disagreement, and would enjoy greater
support”.39
It followed logically that for France “the problem of human rights was a single
problem from the point of view of principle but a multiple problem from the point
of
view of the forms it assumed.” Hence, while speaking in favour of unity, France
considered that “the most important problem was not the unity or duality of the
Lawyers 689
30See, for example, UN docs. E/CN.4/SR.203, p. 20 (Australia); E/CN.4/SR.204, p. 10 (Sweden).
32GAOR, fifth session, 1950, Third Committee, doc. A/C.3/SR.304, p. 211, para. 8.
34GAOR, fifth session, 1950, Third Committee, doc. A/C.3/SR.298, p. 177, paras. 1-2.
36Ibid., p. 142, para. 15.
37Ibid., loc. cit.
38Ibid.
39Ibid., p. 142, para. 16.
covenant, but the implementation of the rights.”40 One of the essential things to
do in
order to move forward was therefore to design “measures of implementation
suited to
the nature of each of the obligations assumed”.41
In view of “the different concepts of their nature and of the methods by
which they should be implemented held by different countries, and of the fact
that a
longer period of time was often required to ensure their enjoyment,” France
considered
it necessary at an early stage to introduce a general clause that would provide
for the
progressive implementation of economic, social and cultural rights,42 a proposal
criticized by Yugoslavia43 but adopted, as amended, by the Commission.44
Australia
agreed that “the concept of progressive realization was of positive value and
should be
retained.” It further observed that “the idea expressed in the word
‘progressively’,
which must be taken in conjunction with the words ‘full realization of the rights’,
was
not a static one [but] meant that certain rights would be applied immediately,
others as
soon as possible”, because, after all, “the immediate implementation of any right
or
measure such as, for instance, old age pensions, was a practical impossibility.”45
2.2.4 The question of justiciability
During the debates at the seventh session of the United Nations Commission
on Human Rights, India strongly favoured the drafting of two covenants,
emphasizing
that economic, social and cultural rights differed from civil and political rights
“inasmuch as the former were not justiciable”. It saw no reason to include both
categories in one and the same Covenant which would “lack equilibrium”. India
therefore wanted the Commission to ask the Economic and Social Council to
reconsider its decision to have all rights contained in one covenant.46
Yugoslavia could not accept India’s view that “alleged violations of economic,
social and cultural rights could not be brought into court”. In its view, “if
governments
were to assume definite obligations in respect of the observance of such rights,
they
would have to take legislative and other measures enabling an action to be
brought in
respect of their non-observance, the courts being empowered to provide
redress.”47
Guatemala also considered that it was “incorrect” to refer to economic, social
and
cultural rights as non-justiciable rights as had been done in the preamble to the
Indian
proposal, and that it “might even prove dangerous”.48 The USSR considered this
distinction to be “completely arbitrary”, adding that the assumption that civil
and
political rights but not economic, social and cultural rights could be defended by
legal
action “would not bear scrutiny, as in many countries certain civil and political
rights,
42UN doc. E/CN.4/SR.237, p. 7.
43Ibid., p. 8.
44Ibid., p. 13; for the text of the French proposal see UN doc. E/CN.4/618.
45UN doc. E/CN.4/SR.237, p. 6.
46UN doc. E/CN.4/SR.248, p. 6.
47Ibid., p. 19.
48Ibid., p. 21.
such as, for instance, the right to vote, could not easily be defended by legal
action
initiated by the individual”.49
India explained that by “justiciable rights” it meant “those rights for the
violation of which governments could be sued”. Governments could not,
however, be
sued “for failing to carry out economic, social and cultural rights, since the
responsible
party might well, for example, be employers”.50
The formal Indian proposal read as follows:51
“The Commission on Human Rights,
Considering that the economic, social and cultural rights though equally
fundamental and therefore important, form a separate category of rights
from that of the civil and political rights in that they are not justiciable
rights;
Considering that the method of their implementation is, therefore, different;
Recommends to the Economic and Social Council that the decision to
include the economic, social and cultural rights in the same covenant with
the civil and political rights, be reconsidered.”
The Commission rejected this proposal by 12 votes to 5, with 1 abstention.52
The Commission thereby also rejected the view contained in the draft resolution
that
economic, social and cultural rights were not justiciable. Although the
Commission did
accept that economic, social and cultural rights required a different
implementation
procedure from civil and political rights, this opinion was thus not based on the
justiciable or non-justiciable nature of economic, social and cultural rights per se
but on
the simple fact that their nature required in many instances considerable efforts
by
States who, possibly helped by international institutions, would have to engage
actively
in comprehensive, persistent and long-term planning for their fulfilment.
Warnings against overemphasis on the differences between civil and political
rights, on the one hand, and economic, social and cultural rights, on the other,
were
subsequently raised, in particular, by Israel and France in the General Assembly.
Israel
submitted that it was not only civil and political rights that could be ensured by
legislative or administrative measures but also some economic, social and
cultural
rights. France for its part, as indicated above, considered that there were “many”
among the latter that were “susceptible of immediate implementation”53 and
that many
could also be justiciable.54
Lawyers 691
49Ibid., p. 13.
50Ibid., p. 25.
51See UN doc. E/CN.4/619/Rev.1.
52UN doc. E/CN.4/SR.248, p. 26. The following countries voted in favour of the resolution: Denmark,
Greece, India, the
United Kingdom and the United States of America; the following countries voted against: Chile, China,
Egypt, France, Guatemala,
Lebanon, Pakistan, Sweden, Ukrainian SSR, USSR, Uruguay and Yugoslavia; Australia abstained.
53GAOR, sixth session, 1951-1952, Third Committee, doc. A/C.3/SR.360, p. 82, paras. 54-55 (Israel) and doc.
A/C.3/SR.371, p. 142,
para. 15 (France).
All civil, cultural, economic, political and social human rights are of
equal value and dependent on each other for their mutual realization.
There are two International Covenants on Human Rights because of the
more complex nature of economic, social and cultural rights which needed
particularly careful drafting and mechanisms of implementation adjusted
to their specific nature.
In view of the different levels of development of States, the Covenant had
to provide for the possibility of progressive implementation, although this
was never meant to imply that there were no immediate obligations.
The suggestion that economic, social and cultural rights are not justiciable
was never accepted in the course of the elaboration of the International
Covenant on Economic, Social and Cultural Rights.
3. Interdependence and
Indivisibility of Human Rights
As made clear by the drafters of the two International Covenants on Human
Rights, economic, social, and cultural rights, on the one hand, and civil and
political
rights, on the other, should not be conceived in opposition to each other but as
intrinsically interdependent in ensuring that they are all fully respected. The
importance
of this basic tenet of international human rights law is consistently borne out in
practice: in countries where there are obstacles to the enjoyment of civil and
political
rights, economic, social and cultural rights are less likely to flourish and,
conversely,
where economic, social and cultural rights fail to thrive, there is little scope for
the full
development of civil and political rights.
Although the terms “interdependence and indivisibility” of human rights are
not explicitly contained in the Universal Declaration of Human Rights, the
wording,
structure and spirit of the Declaration as a whole confirm that the authors wished
to
give equal weight to these two categories of rights. They envisioned “a world in
which
human beings shall enjoy freedom of speech and belief and freedom from fear
and
want” (second preambular paragraph). As seen above, the General Assembly
itself
emphasized as early as in 1950 that economic, social and cultural rights and civil
and
political rights are “interconnected and interdependent”, a view subsequently
confirmed in the third preambular paragraph of both the International Covenant
on
Economic, Social and Cultural Rights and the International Covenant on Civil and
Political Rights. In the third preambular paragraph of the former, the States
parties
recognize
“that, in accordance with the Universal Declaration of Human Rights, the
ideal of free human beings enjoying freedom from fear and want can only
be achieved if conditions are created whereby everyone may enjoy his
economic, social and cultural rights, as well as his civil and political rights”.
In the corresponding preambular paragraph of the International Covenant on
Civil and Political Rights, the States parties recognize
“that, in accordance with the Universal Declaration of Human Rights, the
ideal of free human beings enjoying civil and political freedom and
freedom from fear and want can only be achieved if conditions are created
whereby everyone may enjoy his civil and political rights, as well as his
economic, social and cultural rights”.
This intrinsic relationship between the two categories of rights has
subsequently been stressed in a number of resolutions such as General
Assembly
resolution 41/128 of 4 December 1986 containing the Declaration on the Right to
Development. Article 6 of the Declaration states this clearly:
“1. All States should co-operate with a view to promoting, encouraging
and strengthening universal respect for and observance of all human rights
and fundamental freedoms for all without any distinction as to race, sex,
language or religion.
2. All human rights and fundamental freedoms are indivisible and
interdependent; equal attention and urgent consideration should be given
to the implementation, promotion and protection of civil, political,
economic, social and cultural rights.
3. States should take steps to eliminate obstacles to development
resulting from failure to observe civil and political rights, as well as
economic, social and cultural rights.”
The Vienna Declaration and Programme of Action, which was adopted by
consensus on 25 June 1993 by the World Conference on Human Rights, is an
even
more recent confirmation by the States Members of the United Nations of the
bond
that unites all human rights. In paragraph 5 of part I of the Vienna Declaration,
the
Member States recognize that:
“5. All human rights are universal, indivisible and interdependent and
interrelated. The international community must treat human rights globally
in a fair and equal manner, on the same footing, and with the same
emphasis. While the significance of national and regional particularities
and various historical, cultural and religious backgrounds must be borne in
mind, it is the duty of States, regardless of their political, economic and
cultural systems, to promote and protect all human rights and fundamental
freedoms.”
Given the emphasis that has been placed, since drafting work began in the
1940s on the International Bill of Human Rights, on the intrinsic relationship
between
economic, social and cultural rights and civil and political rights, it was quite
logical for
the Committee on Economic, Social and Cultural Rights to stress the importance
of the
following two general principles in the field of human rights and technical
cooperation activities:
Lawyers 693
_ The first general principle “is that the two sets of human rights are
indivisible and
interdependent. This means that efforts to promote one set of rights should also
take
full account of the other. United Nations agencies involved in the promotion of
economic, social and cultural rights should [therefore] do their utmost to ensure
that
their activities are fully consistent with the enjoyment of civil and political
rights.”55
_ “The second principle of general relevance is that development
cooperation
activities do not automatically contribute to the promotion of respect for
economic,
social and cultural rights. Many activities undertaken in the name of
‘development’
have subsequently been recognized as ill-conceived and even counter-
productive in
human rights terms.”56 A deliberate effort must therefore be made to design
development programmes in such a way that they do in fact enhance the human
rights of individuals, including, for instance, their right to equality before the law
and non-discrimination, legal issues on which domestic courts are particularly
well
qualified to adjudicate.
The inherent link between economic, social and cultural rights, on the one
hand, and civil and political rights, on the other, is particularly apparent in
relation to
the right to life, which is guaranteed by article 6(1) of the International
Covenant on
Civil and Political Rights. This link has not escaped the Human Rights Committee,
which has noted “that the right to life has been too often narrowly interpreted”.57
In the
Committee’s view:
“The expression ‘inherent right to life’ cannot properly be understood in a
restrictive manner, and the protection of this right requires that States
adopt positive measures. In this connection, the Committee considers that
it would be desirable for States parties to take all possible measures to
reduce infant mortality and to increase life expectancy, especially in
adopting measures to eliminate malnutrition and epidemics.”58
Bearing in mind this wide interpretation of the right to life, the Human Rights
Committee has sometimes asked States parties, in connection with the
consideration of
their initial and/or periodic reports, what measures they have taken, for instance,
to
improve peoples’ health conditions and increase their life expectancy,59 reduce
the
infant mortality rate and satisfy the population’s food needs,60 or protect the
population
against epidemics.61 In considering the fourth periodic report of Mongolia in
March
2000, the Human Rights Committee expressed concern about “the acute
problem of
maternal mortality, due in part to unsafe abortions, and the unavailability of
family
planning advice and facilities”.62 These issues could equally well have been
considered
55See the Committee’s General Comment No. 2 (International technical assistance measures (art. 22 of the
Covenant)) in UN
doc. HRI/GEN/1/Rev.5, Compilation of General Comments and General Recommendations Adopted by
Human Rights Treaty Bodies, p. 16,
para. 6 (hereinafter referred to as United Nations Compilation of General Comments)
57Ibid., General Comment No. 6 (Article 6 – the right to life), p. 115, para. 5.
58Ibid., loc. cit.
59With regard to the Gambia, UN doc. GAOR, A/39/40, pp. 61-62, para. 327.
60With regard to Peru, UN doc. GAOR, A/38/40, p. 61, para. 264.
61With regard to Sri Lanka, UN doc. GAOR, A/39/40, p. 21, para. 105; Congo, GAOR, A/42/40, p. 61, para.
230; and Belgium,
UN doc. GAOR, A/47/40, p.105, para. 408.
62See UN doc. GAOR, A/55/40 (I), p. 50, para. 323(b).
under article 12 of the International Covenant on Economic, Social and Cultural
Rights, which guarantees the right to enjoy “the highest attainable standard of
physical
and mental health”, a fact that testifies to the intrinsic link that exists between
this right
and “the inherent right to life” protected by article 6(1) of the International
Covenant
on Civil and Political Rights.
Trade union rights also illustrate the fundamental relationship between the
two categories of rights. While article 22 of the International Covenant on Civil
and
Political Rights guarantees to everyone the general right to freedom of
association,
which includes “the right to form and join trade unions for the protection of his
interests”, article 8(1)(a) of the International Covenant on Economic, Social and
Cultural Rights recognizes “the right of everyone to form trade unions and join
the
trade union of his choice”. Not to allow the formation of associations or trade
unions
of employers and employees would seriously undermine the right to freedom of
association per se, a right which, as emphasized in the General Assembly during
the
drafting of article 22, is of fundamental importance in a democratic society.63
The intrinsic link between trade union rights and civil rights has consistently
been emphasized by the various organs of the International Labour Organization,
especially its Committee of Experts on the Application of Conventions and
Recommendations. For instance, in its 1994 General Survey on Freedom of
Association and Collective Bargaining, the Committee pointed out that its
experience
showed “that the restriction of civil and political liberties is a major factor in
violations
of freedom of association”.64 The chapter on trade union rights and civil liberties
reached the following conclusion:
“43. The Committee considers that the guarantees set out in the
international labour Conventions, in particular those relating to freedom
of association, can only be effective if the civil and political rights
enshrined in the Universal Declaration of Human Rights and other
international instruments, notably the International Covenant on Civil and
Political Rights, are genuinely recognized and protected. These intangible
and universal principles ... should constitute the common ideal to which all
peoples and all nations aspire.”65
It is beyond dispute that, for the right to freedom of association to be
effective, trade union members must, inter alia, enjoy full freedom of opinion,
information, expression and movement, and be able to assemble freely to
discuss issues
relevant to their interests. They must furthermore enjoy protection against
arbitrary
arrest, and if a trade union member is nevertheless arrested for whatever
reason, he or
she has a right to all due process guarantees described in Chapters 4 to
7,
including the right to be treated humanely as set forth in Chapter 8 of
this
Manual.
Lawyers 695
63See, for example GAOR, sixteenth session, 1961, Third Committee, doc. A/C.3/SR.1087, p. 134, para. 16
(Sweden) and doc.
A/C.3/SR.1088, p. 139, para. 7 (Italy). Italy referred here to “freedom of political association” which
“completed the freedoms of
opinion, expression and assembly”.
64General Survey of the Reports on the Freedom of Association and the Right to Organize Convention (No.
87), 1948 and the
Right to Organize and Collective Bargaining Convention (No. 98), 1949, Report III (Part 4B), International
Labour Conference,
eighty-first session, Geneva, 1994, p. 13, para. 23.
65Ibid., p. 21, para. 43; italic omitted.
These are just two practical examples of the fundamental and complex
relationship that exists between, on the one hand, economic, social and cultural
rights,
and, on the other, civil and political rights, which, in theory as well as in practical
application, should not be regarded as two separate categories of rights
competing for
funds and attention but rather as forming a whole set of legal rules for
the
protection of all dimensions of the human person, rules between which
there is an
ongoing dialectical relationship aimed at the achievement of justice,
security
and well-being of all.
The evolution of international human rights law, including its
interpretation by international monitoring bodies, has confirmed that
essential links exist between civil and political rights and economic, social
and cultural rights.
Governments have a fundamental legal duty simultaneously to proceed
with the implementation of all these rights which are aimed at protecting
the most fundamental dimensions of human life and the human person.
4. Universal and Regional Treaties
for the Protection of Economic,
Social and Cultural Rights:
The Rights Guaranteed
This section contains a list of the principal economic, social and cultural rights
guaranteed by the major universal and regional treaties. The treaties cover a
wide range
of rights, and it is well beyond the scope of this Manual to analyse them all. A
strict
selection has therefore been made of rights that will be subjected to more
extensive
analysis in sections 6 and 7.
For details of the procedures for implementation of universal and regional
treaties for the protection of economic, social and cultural rights, see Chapters 2
and 3
of this Manual.
4.1 The universal level
4.1.1 International Covenant on Economic, Social and Cultural
Rights, 1966
The present section, which deals with the universal level, will focus on the
International Covenant on Economic, Social and Cultural Rights, the enforcement
of
which is monitored by the Committee on Economic, Social and Cultural Rights on
the
basis of reports submitted by States parties. For further information regarding
the
Committee’s interpretation of the various provisions of the Covenant, see
Handout
No. 2, which contains a list of all General Comments adopted by the Committee
up to
26 April 2001. As of 8 February 2002, the Covenant had 145 States parties. It
guarantees, in particular, the following rights:
_ the right to equality and non-discrimination in the enjoyment of rights – article
2(2)
(non-discrimination in general) and article 3 (between men and women);
_ the right to work, including the right to gain one’s living by work freely chosen
or
accepted – article 6;
_ the right to enjoy just and favourable conditions of work, including fair wages
and
equal remuneration for work of equal value without distinction of any kind; a
decent
living for workers and their families; safe and healthy working conditions; equal
opportunity to be promoted; rest, leisure and reasonable limitation of working
hours and periodic holidays with pay – article 7;
_ the right to form trade unions and join the trade union of one’s choice,
including the
right to establish national federations or confederations – article 8(1)(a) and (b);
_ the right to strike – article 8(1)(d);
_ the right to social security, including social insurance – article 9;
_ the right to protection and assistance for the family; entry into marriage with
free
consent, maternity protection; protection and assistance for children and young
persons – article 10(1)-(3);
_ the right to an adequate standard of living, including adequate food, clothing
and
housing, and to the continuous improvement of living conditions – article 11(1);
_ the right to the highest attainable standard of physical and mental health –
article 12;
_ the right to education – article 13;
_ the right to take part in cultural life, to enjoy the benefits of scientific progress
and to
benefit from the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which one is the author – article 15(1).
4.2 The regional level
4.2.1 African Charter on Human and Peoples’ Rights, 1981
At the regional level, the African Charter on Human and Peoples’ Rights
provides protection not only for the economic, social and cultural rights of
individuals
but also for those of peoples (see article 22 of the Charter). However, the
following list
relates only to the rights of individuals, which include:
_ the right to non-discrimination in the enjoyment of the rights protected by the
Charter – article 2;
_ the right to freedom of association – article 10;
_ the right to work under equitable and satisfactory conditions; the right to
receive
equal pay for equal work – article 15;
_ the right to enjoy the best attainable state of physical and mental health –
article 16;
_ the right to education – article 17(1);
Lawyers 697
_ the right freely to take part in the cultural life of one’s community – article
17(2);
_ the right of the aged and disabled to special measures of protection in keeping
with
their physical or moral needs – article 18(4).
Other provisions contained in article 18 of the Charter are not framed as
rights but as duties of States, for example their obligation to take care of the
physical
and moral health of the family (art. 18(1)), to assist the family (art. 18(2)) and to
ensure
the elimination of discrimination against women and protection of the rights of
the
woman and the child as stipulated in international declarations and conventions
(art.
18(3)).
4.2.2 American Convention on Human Rights, 1969, including
the Additional Protocol in the Area of Economic, Social and
In the Americas, civil, cultural, economic, political and social rights were
contained at the outset in the 1948 American Declaration of the Rights and
Duties of
Man. When the American Convention on Human Rights was adopted in 1969,
Chapter
III entitled “Economic, Social and Cultural Rights” consisted solely of article 26,
according to which:
“The States Parties undertake to adopt measures, both internally and
through international co-operation, especially those of an economic and
technical nature, with a view to achieving progressively, by legislation or
other appropriate means, the full realization of the rights implicit in the
economic, social, educational, scientific, and cultural standards set forth in
the Charter of the Organization of American States as amended by the
Protocol of Buenos Aires.”
These rights were elaborated in greater detail in the 1988 Additional Protocol
to the American Convention on Human Rights in the Area of Economic, Social
and
Cultural Rights, also called the “Protocol of San Salvador”. The Protocol, which
entered into force on 16 November 1999, protects the following rights in
particular:
_ the right to non-discrimination in the exercise of the rights guaranteed – article
3;
_ the right to work, including the opportunity to secure the means for living a
dignified and decent existence – article 6;
_ the right to just, equitable and satisfactory conditions of work, including
remuneration which guarantees, as a minimum, to all workers and their families
dignified and decent living conditions; fair and equal wages for equal work; the
right
to promotion; safety and hygiene at work; prohibition of night work and
unhealthy
or dangerous working conditions for persons below the age of 18 years; a
reasonable
limitation of working hours and rest, leisure and paid vacations – article 7;
_ trade union rights such as the right of workers to organize trade unions and to
join
the union of their choice for the purpose of promoting and protecting their
interests, and the right to strike – article 8(1);
_ the right to social security – article 9;
_ the right to health, “understood to mean the enjoyment of the highest level of
physical, mental and social well-being” – article 10;
_ the right to a healthy environment – article 11;
_ the right to food, meaning “the right to adequate nutrition which guarantees
the
possibility of enjoying the highest level of physical, emotional and intellectual
development” – article 12;
_ the right to education – article 13;
_ the right to the benefits of culture, including scientific and technological
progress –
article 14(1);
_ the right to the formation and protection of families – article 15;
_ the rights of children – article 16;
_ the right of the elderly to special protection – article 17;
_ the right of the handicapped person to receive special attention “designed to
help
him achieve the greatest possible development of his personality” – article 18.
4.2.3 European Social Charter, 1961, and European Social Charter
(revised), 1996
As of 19 June 2002, the European Social Charter of 1961 had been ratified by
25 member States of the Council of Europe. It contains the rights enumerated
below:
_ the right to work – article 1;
_ the right to just conditions of work – article 2;
_ the right to safe and healthy working conditions – article 3;
_ the right to a fair remuneration – article 4;
_ the right to organize – article 5;
_ the right to bargain collectively – article 6;
_ the right of children and young persons to protection – article 7;
_ the right of employed women to protection – article 8;
_ the right to vocational guidance – article 9;
_ the right to vocational training – article 10;
_ the right to protection of health – article 11;
_ the right to social and medical assistance – article 13;
_ the right to benefit from social welfare services – article 14;
_ the right of physically or mentally disabled persons to vocational training,
rehabilitation and social resettlement – article 15;
_ the right of the family to social, legal and economic protection – article 16;
_ the right of mothers and children to social and economic protection – article 17;
_ the right to engage in a gainful occupation in the territory of other Contracting
Parties – article 18;
article 19.
Lawyers 699
The 1988 Additional Protocol entered into force on 4 September 1992 and
had been ratified, as of 19 June 2002, by ten States. Under this Protocol, which
does not
prejudice the provisions of the European Social Charter, the Contracting Parties
also
undertake to consider themselves bound by one or more articles recognizing the
following rights:
and
occupation without discrimination on the grounds of sex – article 1;
_ the right to information and consultation for workers – article 2;
_ the right of workers to take part in the determination and improvement of the
working conditions and working environment – article 3;
_ the right of elderly persons to social protection – article 4.
The revised version of the European Social Charter was adopted in 1996 and
entered into force on 1 July 1999. As of 19 June 2002, it had been ratified by 13
States.
The revised Social Charter will progressively replace the original Charter, the
terms of
which it updates and extends. By taking into account new social and economic
development, the revised Charter amends certain existing provisions and adds
new
ones. The new features include, in particular, a considerably longer list of rights
and
principles in Part I than those contained in the old Charter (31 rights and
principles,
compared with 19 in the 1961 Charter). In addition to the rights taken from the
1988
Additional Protocol, new important features include:
_ the right to protection in cases of termination of employment – article 24;
_ the right of workers to protection of their claims in the event of the insolvency
of
their employer – article 25;
_ the right to dignity at work – article 26;
_ the right of workers with family responsibilities to equal opportunities and
equal
treatment – article 27;
_ the right of workers’ representatives to protection in the undertaking, and
facilities
to be accorded to them – article 28;
_ the right to information and consultation in collective redundancy procedures –
article 29;
_ the right to protection against poverty and social exclusion – article 30;
_ the right to housing – article 31.
The economic, social and cultural rights guaranteed by international
human rights law cover wide areas and essential aspects of human life
such as the right to work and to favourable conditions of work, the right
to an adequate standard of living, the right to adequate physical and
mental health, the right to education and the right to special assistance
for
families and children.
The enjoyment of all these rights is conditioned by respect for the
principle
of equality before the law and in the application of the law.
5. The Legal Obligations of States

to Protect Economic, Social and
Cultural Rights
5.1.1 Introductory remarks
The general legal duties of States parties to give effect to their obligations
under the International Covenant on Economic, Social and Cultural Rights are
laid
down in article 2, which reads as follows:
“1. Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.
2. The States Parties to the present Covenant undertake to guarantee
that the rights enunciated in the present Covenant will be exercised
without discrimination of any kind as to race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth
or other status.
3. Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would guarantee the
economic rights recognized in the present Covenant to non-nationals.”
It should be pointed out in general that, unlike article 2(1) of the International
Covenant on Civil and Political Rights, which imposes a legal duty of immediate
enforcement of the rights guaranteed, article 2(1) of the International Covenant
on
Economic, Social and Cultural Rights allows for progressive realization of the
rights
recognized. However, as is clear from the debates during the drafting of the
Covenants
as summarized in section 2, it would not only be a serious oversimplification, but
legally
incorrect, to conclude that the International Covenant on Economic, Social and
Cultural Rights only entails duties of progressive implementation with no
obligation of
immediate action. The nature of the rights per se, the way in which they are
phrased, the
views of the drafters, and the opinions expressed to date by the Committee on
Economic, Social and Cultural Rights show that the nature and extent of the legal
obligations that States parties have assumed in ratifying or otherwise adhering
to the
Covenant are much more dynamic. This conclusion is only logical in view of the
fact
that, notwithstanding the many economic and social problems facing
Governments,
the Covenant has been and remains a legal tool aimed at achieving a steady
improvement in the living conditions of people worldwide.
Lawyers 701
As pointed out by the Committee on Economic, Social and Cultural Rights in
one of its earliest general comments, the legal obligations laid down in article 2
of the
Covenant include both “obligations of conduct and obligations of result”.66
This
means, inter alia, that, “while the Covenant provides for progressive realization
and
acknowledges the constraints due to the limits of available resources, it also
imposes
various obligations which are of immediate effect.”67 One of these
obligations of
immediacy is the undertaking in article 2(2) to guarantee that the rights
contained in the
Covenant are exercised without discrimination.68 A second such obligation “is the
undertaking in article 2(1) ‘to take steps’, which in itself is not qualified or limited
by
other considerations”.69 As noted by the Committee, the full meaning of the
phrase can
also be gauged by comparing the English text with the French and Spanish
versions,
according to which the States parties undertake “to act” (French: “s’engage à
agir”) and
“to adopt measures” (Spanish: “a adoptar medidas”).70 This legal obligation
means that
“while the full realization of the relevant rights may be achieved
progressively, steps towards that goal must be taken within a reasonably
short time after the Covenant’s entry into force for the States concerned.
Such steps should be deliberate, concrete and targeted as clearly as
possible towards meeting the obligations recognized in the Covenant.”71
A third obligation has to be added to the obligations of conduct and result,
namely the duty to give effect to the relevant legal duties, including by
providing
domestic remedies. These three aspects of States parties’ legal undertakings
are
interrelated and to some extent overlapping, but, as noted by the Committee,
they have
distinctive features that will be described below.
5.1.2 The obligation of conduct
With regard to the means that States parties should use to comply with the
obligation “to take steps”, article 2(1) of the Covenant refers to “all appropriate
means,
including particularly the adoption of legislative measures”. While it is for States
parties
themselves to assess what are the most “appropriate” measures, in addition to
legislation, to fulfil their treaty obligations under the Covenant, the Committee
holds
that such measures “include, but are not limited to, administrative, financial,
educational, and social measures”.72
Another measure that is considered “appropriate” by the Committee is “the
provision of judicial remedies with respect to rights which may, in accordance
with the
national legal system, be considered justiciable. The Committee notes, for
example, that
the enjoyment of the rights recognized, without discrimination, will often be
appropriately promoted, in part, through the provision of judicial or other
effective
66See General Comment No. 3 (The nature of States parties’ obligations -article 2(1)), United Nations
Comments, p. 18, para. 1; emphasis added.
68Ibid.
69Ibid., p. 18, para. 2.
70Ibid., loc. cit.
71Ibid.; emphasis added.
remedies”.73 In addition, there are a number of provisions of the Covenant,
including
articles 3, 7(a) (i), 8, 10(3), 13(2)(a), (3) and (4) and 15(3), “which would seem to
be
capable of immediate application by judicial and other organs in many national
legal
systems. Any suggestion that the provisions indicated are inherently non-self-
executing
would seem to be difficult to sustain.”74
5.1.3 The obligation of result
The “principal obligation of result” contained in article 2(1) “is to take steps
‘with a view to achieving progressively the full realization of the rights
recognized’ in
the Covenant”.75 However, as underlined by the Committee, the fact that the
Covenant
allows for the “progressive realization” of rights, i.e. for “realization over time”,
“should not be misinterpreted as depriving the obligation of all meaningful
content”.76
The Committee describes this obligation in the following terms:
“It is on the one hand a necessary flexibility device, reflecting the realities
of the real world and the difficulties involved for any country in ensuring
full realization of economic, social and cultural rights. On the other hand,
the phrase must be read in the light of the overall objective, indeed the
raison d’être, of the Covenant which is to establish clear obligations for
States parties in respect of the full realization of the rights in question. It
thus imposes an obligation to move as expeditiously and effectively as
possible towards that goal. Moreover, any deliberately retrogressive
measures in that regard would require the most careful consideration and
would need to be fully justified by reference to the totality of the rights
provided for in the Covenant and in the context of the full use of the
maximum available resources.”77
Moreover, the Committee is of the view that every State party has “a
minimum core obligation to ensure the satisfaction of, at the very least,
minimum
essential levels of each of the rights” guaranteed by the Covenant, failing which
the
latter “would be largely deprived of its raison d’être”.78 This means, for instance,
in the
words of the Committee, that
“a State party in which any significant number of individuals is deprived of
essential foodstuffs, of essential primary health care, of basic shelter and
housing, or of the most basic forms of education is, prima facie, failing to
discharge its obligations under the Covenant.”79
In this regard the Committee has further specified that, since article 2(1)
requires each State party “to take the necessary steps ‘to the maximum of its
available
resources’”, a State must, in order to be able to attribute its failure to meet at
least its
minimum core obligations to a lack of available resources, “demonstrate that
every
Lawyers 703
73Ibid., p. 19, para. 5.
74Ibid., loc. cit.
75Ibid., p. 20, para. 9.
76Ibid., loc. cit.
77Ibid.
78Ibid., p. 20, para. 10.
79Ibid., loc. cit.
effort has been made to use all resources that are at its disposition in an effort to
satisfy,
as a matter of priority, those minimum obligations”.80 However, as emphasized
by the
Committee, “even where the available resources are demonstrably inadequate,
the
obligation remains for a State party to strive to ensure the widest possible
enjoyment of
the relevant rights under the prevailing circumstances.”81
5.1.4 The obligation to give effect: the provision of
domestic remedies
In General Comment No. 9 concerning the domestic application of the
Covenant, the Committee on Economic, Social and Cultural Rights elaborated on
some
of the statements made in General Comment No. 3. It noted in particular that the
Covenant, by requiring Governments to give effect to the rights it guarantees
“by all
appropriate means”, adopts a broad and flexible approach which enables the
particularities of the legal and administrative systems of each State, as well as
other
relevant considerations, to be taken into account.82 “But this flexibility coexists
with the
obligation upon each State party to use all the means at its disposal to give
effect to the
rights recognized in the Covenant. In this respect, the fundamental requirements
of
international human rights law must be borne in mind. Thus, the Covenant
normsmust
be recognized in appropriate ways within the domestic legal order, appropriate
means
of redress, or remedies, must be available to any aggrieved individual or group,
and
appropriate means of ensuring governmental responsibility must be put in
place.”83
In the Committee’s view, “questions relating to the domestic application of
the Covenant must be considered in the light of two principles of international
law”:
_ first, pursuant to article 27 of the Vienna Convention on the Law of Treaties, a
State
party may not invoke the provisions of its internal law to justify non-performance
of
its treaty obligations; hence, in order to give effect to its treaty obligations, it
“should
modify the domestic legal order as necessary”;84
_ second, according to article 8 of the Universal Declaration of Human Rights,
“everyone has the right to an effective remedy by the competent national
tribunals
for acts violating the fundamental rights granted him by the constitution or by
law”;
although the International Covenant on Economic, Social and Cultural Rights
does
not directly require States parties to establish judicial remedies for alleged
violations
of its provisions, the Committee considers that “a State party seeking to justify
its
failure to provide any domestic legal remedies for violations of economic, social
and
cultural rights would need to show either that such remedies are not ‘appropriate
means’, within the terms of article 2, paragraph 1 ... or that, in view of the other
means used, they are unnecessary. It will be difficult to show this and the
Committee
considers that, in many cases, the other means used could be rendered
ineffective if
they are not reinforced or complemented by judicial remedies.”85
80Ibid.
81Ibid., p. 20, para. 11.
82Ibid., p. 58, para. 1.
83Ibid., p. 58, para. 2.
84Ibid., p. 58, para. 3.
85Ibid., pp. 58-59, para. 3.
From the Committee’s General Comments it may be concluded that, as a
general rule, the effective enforcement of the International Covenant
on
Economic, Social and Cultural Rights requires the availability of
domestic
remedies for those who consider that their rights have been violated by
the State.
The fact that the Covenant, unlike the International Covenant on Civil and
Political
Rights, does not expressly provide for legal or other remedies for aggrieved
persons
indicates a reluctance on the part of the drafters to subject themselves to
individual
complaints in a field that depends to a considerable extent on financial resources
and
stage of development. This reluctance has recently been confirmed by the
difficulties
encountered in securing adoption of an optional protocol to the International
Covenant on Economic, Social and Cultural Rights which would provide for an
international individual and group complaints procedure.
The States parties to the International Covenant on Economic, Social
and Cultural Rights cannot rely on their internal legislation to justify
failure to implement the Covenant.
The States parties to the Covenant have an obligation of conduct
and must, in particular, take all legislative, administrative, financial,
educational and social measures that are appropriate to give effect to the
terms of the Covenant.
The States parties also have an obligation of result in that they
must move as expeditiously and effectively as possible towards the
realization of the rights contained in the Covenant, using their available
resources to the maximum.
Every State party has a legal duty immediately to ensure the minimum
core obligations of each of the rights contained in the Covenant.
Even in situations of demonstrably inadequate resources, the States
parties have to prove that they are striving to ensure the widest possible
enjoyment of the rights contained in the Covenant.
States parties have a legal duty to give effect to the Covenant by using all
means at their disposal. This duty comprises the provision of means of
redress or remedies enabling individuals effectively to vindicate their
economic, social and cultural rights at the domestic level.
5.2 African Charter on Human and Peoples’ Rights,
1981
Article 1 of the African Charter on Human and Peoples’ Rights defines the
legal obligations of States parties with regard to all rights, duties and freedoms
contained in the Charter, including economic, social and cultural rights. This
means
that they “shall recognize” them and “shall undertake to adopt legislative or
other
measures to give effect to them”. Neither this provision nor the provisions
defining the
rights in question suggest anything other than a legal duty to implement the
legal
obligations immediately.
Lawyers 705
5.3 American Convention on Human Rights, 1969,
and Additional Protocol in the Area of Economic,
Social and Cultural Rights, 1988
In article 1 of the Additional Protocol to the American Convention on
Human Rights in the Area of Economic, Social and Cultural Rights, the members
of the
Organization of American States (OAS) have opted for a progressive approach,
whereby the States parties
“undertake to adopt the necessary measures, both domestically and
through international cooperation, especially economic and technical, to
the extent allowed by their available resources, and taking account their
degree of development, for the purpose of achieving progressively and
pursuant to their internal legislations, the full observance of the rights
recognized in this Protocol”.
Although the approach is progressive, it is clearly also result-oriented in that
the States parties “undertake to adopt the necessary measures” for the purpose
of
achieving “the full observance of the rights recognized” in the Protocol.
5.4 European Social Charter, 1961, and European
Social Charter (revised), 1996
It may be said in general that the revision of the European Social Charter of
1961 was not intended to represent “a lowering of the level of protection
provided for
therein” but that, on the contrary, “the reform would involve taking account both
of
developments in social and economic rights as reflected in other international
instruments and in legislation of member states and also of social problems not
covered
by the other international instruments in force.”86 It was further agreed that “all
amendments were to be made bearing in mind the need to ensure equal
treatment of
men and women.”87
With regard to the precise legal obligations, both the 1961 and 1966 versions
of the European Social Charter contain a specific scheme of undertakings that
allows
the Contracting States to engage in progressive implementation of the rights
they
contain. However, while each Contracting Party accepts that it considers Part I of
each
Charter “as a declaration of the aims which it will pursue by all appropriate
means”
(article 20(1)(a) of the 1961 Charter and article A of the 1996 Charter), both
Charters
also define the core undertakings all States have to accept when
becoming
Parties thereto.
Under the 1961 Charter, the Contracting Parties undertake to become bound
by at least five of the following articles:
86See European Social Charter: Explanatory Report (ETS No. 163), at the Council of Europe web site:
http://conventions.coe.int/treaty/en/Reports/Html/163.htm p. 1.
87Ibid., loc. cit.
_ the right to work – article 1;
_ the right to organize – article 5;
_ the right to bargain collectively – article 6;
_ the right to social and medical assistance – article 13;
_ the right of the family to social, legal and economic protection – article 16;
article
19.
Moreover, the States parties have to choose to be bound by no less than a total
of 10 articles or 45 numbered paragraphs (art. 20(1)(c)).
Under the revised 1996 Charter, the number of core obligations was increased
and the Contracting States have to accept to be bound by at least six of the core
articles,
to which the following two have been added to those contained in the old
Charter:
_ the right of children and young persons to protection – article 7;
and
occupation without discrimination on the grounds of sex – article 20.
The Contracting States must then also accept to be bound by an additional
number of provisions totalling no less than 16 articles or 63 numbered
paragraphs (Part
III, art. A).
The Contracting States must thus agree to be bound by a considerable number
of provisions to be implemented with effect from the day of ratification of the
respective Charter and they are, of course, free to increase the number of
provisions by
which they want to be bound at any time thereafter (see art. 20(3) of the 1961
Charter
and art. A(3) of the 1996 Charter).
The European Social Charter adopts a hybrid approach to international
legal duties in that it imposes on the Contracting States a certain number
of immediately enforceable rights while allowing them to engage in
progressive implementation of other rights.
6. Economic, Social and Cultural
Rights: Are they Justiciable?
As described in sub-section 2.2.4, the question of justiciability of economic,
social and cultural rights was discussed in connection with the elaboration of the
Covenant. Although a handful of Governments in the Commission on Human
Rights
voted at the time in favour of a resolution which expressly denied that these
rights were
justiciable, the States concerned were in a clear minority. Other countries
emphasized
the inaccuracy and even danger of labelling economic, social and cultural rights
Lawyers 707
non-justiciable and France pointed out that many aspects of such rights would be
justiciable. Although half a century has passed in the meantime, there is still no
unanimity in practice with regard to the competence that domestic courts have
or
should have in adjudicating claims involving alleged violations of economic,
social and
cultural rights. This uncertainty was highlighted by a Workshop on the
Justiciability of
Economic, Social and Cultural Rights, with Particular Reference to an Optional
Protocol to the Covenant on Economic, Social and Cultural Rights held in Geneva,
Switzerland, in February 2001. It was organized by the Office of the United
Nations
High Commissioner for Human Rights and the International Commission of
Jurists.
As shown by the reports submitted to the Workshop, domestic courts are being
called
upon with increasing frequency to adjudicate claims relating to economic, social
and
cultural rights, such as the right to adequate housing and the right to equality
before the
law. Taken together with an objective analysis of the rights concerned, this
evolution
shows that the issue of justiciability is not clear-cut and that decisions as to
whether
specific rights lend themselves to judicial review may have more to do with
political
expediency than law stricto sensu.
An interesting parallel indicates that the same argument also applies to some
extent in the field of civil and political rights. Questions concerning the
lawfulness of
the exercise of emergency powers by Governments in times of crisis have often
been
held to be non-justiciable, but the European and American Courts of Human
Rights in
particular have shown that the declaration of a public emergency and the
imposition of
extraordinary limitations on the exercise of human rights in derogation of
international
legal obligations are justiciable issues that have to be examined in the light of
the
relevant State’s treaty obligations.88
With regard to the International Covenant on Economic, Social and Cultural
Rights, the competent Committee has considered the question of justiciability in
connection with the role of legal remedies in General Comment No. 9. Although
the
Committee considers that “the right to an effective remedy need not be
interpreted as
always requiring a judicial remedy” and that “administrative remedies will, in
many
cases, be adequate,” it is also of the view that
“whenever a Covenant right cannot be made fully effective without some
role for the judiciary, judicial remedies are necessary.”89
In this General Comment the Committee regrets that, in contrast to civil and
political rights, the “assumption is too often made” that judicial remedies are not
essential with regard to violations of economic, social and cultural rights,
although “this
discrepancy is not warranted either by the nature of the rights or by the relevant
Covenant provisions.”90 The Committee notes that it has already made clear
“that it
considers many of the provisions in the Covenant to be capable of immediate
implementation,” for instance articles 3, 7(a)(i), 8, 10(3), 13(2)(a), 13(3), 13(4)
and
15(3).91 These provisions, which the Committee cites by way of example,
contain the
following rights:
88For more information on this issue, see Chapter 16 of this Manual.
90Ibid., p. 60, para. 10.
91Ibid., loc. cit.
_ the right to equality between men and women in the enjoyment of rights –
article 3;
_ the right to fair wages and equal remuneration for work of equal value – article
7(a)(i);
_ the right to form trade unions that can function freely; the right to strike –
article 8;
_ the right of children and young people to special measures of protection and
assistance, to be taken without discrimination – article 10(3);
_ the right to free compulsory primary education for all – article 13(2)(a);
_ the right of parents or legal guardians to choose for their children schools other
than
public schools to ensure religious and moral education in conformity with their
convictions – article 13(3);
_ the right of individuals and bodies to establish and direct educational
institutions in
conformity with legal standards – article 13(4);
_ the freedom indispensable for scientific research and creative activity – article
15(3).
On the issue of justiciability of the rights contained in the International
Covenant on Economic, Social and Cultural Rights, the Committee added that:
“It is important in this regard to distinguish between justiciability (which
refers to those matters which are appropriately resolved by the courts) and
norms which are self-executing (capable of being applied by courts without
further elaboration). While the general approach of each legal system needs
to be taken into account, there is no Covenant right which could not, in the
great majority of systems, be considered to possess at least some significant
justiciable dimensions. It is sometimes suggested that matters involving the
allocation of resources should be left to the political authorities rather than
the courts. While the respective competences of the various branches of
government must be respected, it is appropriate to acknowledge that
courts are generally already involved in a considerable range of matters
which have important resource implications. The adoption of a rigid
classification of economic, social and cultural rights which puts them, by
definition, beyond the reach of the courts would thus be arbitrary and
incompatible with the principle that the two sets of human rights are
indivisible and interdependent. It would also drastically curtail the capacity
of the courts to protect the rights of the most vulnerable and
disadvantaged groups in society.”92
With regard to the self-executing nature of the provisions of the Covenant,
the Committee has pointed out that “the Covenant does not negate the
possibility that
the rights it contains may be considered self-executing in systems where that
option is
provided for. Indeed, when it was being drafted, attempts to include a specific
provision in the Covenant to the effect that it be considered ‘non-self-executing’
were
strongly rejected.”93 The Committee goes on to say that:
“In most States, the determination of whether or not a treaty provision is
self-executing will be a matter for the courts, not the executive or the
legislature. In order to perform that function effectively, the relevant
courts and tribunals must be made aware of the nature and implications of
Lawyers 709
92Ibid.
93Ibid., p. 61, para. 11.
the Covenant and of the important role of judicial remedies in its
implementation. Thus, for example, when Governments are involved in
court proceedings, they should promote interpretations of domestic laws
which give effect to their Covenant obligations. Similarly, judicial training
should take full account of the justiciability of the Covenant. It is especially
important to avoid any a priori assumption that the norms should be
considered to be non-self-executing. In fact, many of them are stated in
terms which are at least as clear and specific as those in other human rights
treaties, the provisions of which are regularly deemed by courts to be
self-executing.”94
In the light of what has been said in the foregoing sections, the question of
whether economic, social and cultural rights lend themselves to judicial
determination
may be summarized as follows:
Neither the nature of economic, social and cultural rights as such nor the
terms of the International Covenant on Economic, Social and Cultural
Rights or its travaux préparatoires may be invoked to deny the
justiciability of such rights.
On the contrary, many aspects of the rights concerned lend themselves to
judicial determination.
States parties to the Covenant must provide judicial remedies for alleged
violations of economic, social and cultural rights whenever such measures
are necessary for their effective enforcement. Such remedies must exist
alongside adequate administrative remedies.
The classification of economic, social and cultural rights as non-justiciable
amounts to a denial of the indivisibility and interdependence of such
rights and civil and political rights.
7. Case-Study I: The Right to
Adequate Housing
The following sections will present two rights, the right to adequate housing
and the right to health, first analysing them in terms of their interpretation by
the
competent international monitoring bodies and then giving examples of rulings
by
domestic tribunals on their enjoyment or the enjoyment of certain aspects of
them.
It is beyond the scope of this chapter to provide a complete picture of the
multiple roles of domestic courts in enforcing economic, social and cultural
rights.
94Ibid., loc. cit.
However, as a general rule both ordinary and administrative courts in many
countries
adjudicate a multitude of questions relating to, for instance, various forms of
social
security such as help for the sick, the elderly and persons with disabilities, the
rights of
minorities to culture, the right to adequate housing, questions of equality and
non-discrimination, and so forth. Furthermore, labour courts may exist to decide
issues
relating to occupational rights such as the right to freedom of association and
collective
bargaining of trade unions, the right to strike and occupational health hazards.
Although
domestic law may not expressly provide, for instance, for the right to food or the
right to
adequate housing as defined by international human rights law, it may
nonetheless
provide legal guarantees that enable local judges to arrive at the same or similar
substantive results. Economic, social and cultural rights constitute, in other
words, a field
of law in which courts fulfil an important role alongside administrative
procedures.
The rights dealt with below have been selected because of their somewhat
more difficult legal contours as compared to other economic and social rights
that are
more easily accepted as lending themselves to judicial decision-making, such as
the
relatively long list of workers’ rights.
Cultural Rights: article 11(1)
The right to adequate housing, following its recognition in article 25 of the
Universal Declaration of Human Rights, was incorporated in article 11(1) of the
International Covenant on Economic, Social and Cultural Rights as a component
of the
right to an adequate standard of living. At the universal level, the right to
housing may
also be found, in particular, in article 5(e)(iii) of the International Convention on
the
Elimination of All Forms of Racial Discrimination, article 14(2)(h) of the
Convention
on the Elimination of All Forms of Discrimination against Women and article
27(3) of
the Convention on the Rights of the Child. At the regional level, only the revised
European Social Charter of 1996 expressly guarantees the right to housing (art.
31).
The right to housing has also been affirmed in numerous other documents
such as article 8(1) of the Declaration on the Right to Development. At the 1996
United
Nations Conference on Human Settlements (Habitat II), the participating
Governments also unanimously agreed to reaffirm their “commitment to the full
and
progressive realization of the right to adequate housing, as provided for in
international
instruments”.95 They further recognized that they have “an obligation ... to
enable
people to obtain shelter and to protect and improve dwellings and
neighbourhoods”,
and they committed themselves
“to the goal of improving living and working conditions on an equitable
and sustainable basis, so that everyone will have adequate shelter that is
healthy, safe, secure, accessible and affordable and that includes basic
services, facilities and amenities, and will enjoy freedom from
discrimination in housing and legal security of tenure”.96
Lawyers 711
95See UN doc. A/CONF.165/14, report of the United Nations Conference on Human Settlements (Habitat II),
Istanbul, 3-14
June 1996, p. 17, para. 39.
96Ibid., loc. cit.
Lastly, the Governments agreed to “implement and promote this objective in
a manner fully consistent with human rights standards”.97
In the present context, however, the principal legal text to be considered is
article 11(1) of the International Covenant on Economic, Social and Cultural
Rights.
The texts of other relevant conventions and declarations may be found in
Handout 3.
*****
Article 11(1) of the International Covenant on Economic, Social and Cultural
Rights reads:
“The States Parties to the present Covenant recognize the right of
everyone to an adequate standard of living for himself and his family,
including adequate food, clothing, housing, and to the continuous
improvement of living conditions. The States Parties will take appropriate
steps to ensure the realization of this right, recognizing to this effect the
essential importance of international co-operation based on free consent”
(emphasis added).
This provision has to be read in conjunction with article 2(1), which provides
that:
“Each State Party to the present Covenant undertakes to take steps,
individually and through international assistance and co-operation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the
rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures.”
As may be seen, the right to “an adequate standard of living” in article 11(1) is
a right with many components. This section will only consider the question of
adequate
housing, which was dealt with in General Comment No. 4 of the Committee on
Economic, Social and Cultural Rights. It has also been dealt with in General
Comment
No. 7 on forced evictions. The Committee’s work shows that problems relating to
adequate housing exist in virtually all countries and affect a considerable part of
humanity. As noted by the Committee in its General Comments Nos. 4 and 7, the
right
to adequate housing has the following personal and material fields of application:
7.2.1 Persons covered by the right
The right to adequate housing “applies to everyone” and “the concept of
‘family’ must be understood in a wide sense. Further, individuals, as well as
families, are
entitled to adequate housing regardless of age, economic status, group or other
affiliation or status or such factors. In particular, enjoyment of this right must, in
accordance with article 2(2) of the Covenant, not be subject to any form of
discrimination.”98
97Ibid.
7.2.2 Interpretative approach, including interdependence of rights
The Committee has rejected a “narrow or restrictive” interpretation of the
right to adequate housing, which would imply, for instance, the mere provision of
a
shelter in the sense of having a roof over one’s head or which would view shelter
exclusively “as a commodity”. “Rather it should be seen as the right to live
somewhere
in security, peace and dignity.”99 This interpretation consists of at least two
components:
_ the fact that “the right to housing is integrally linked to other human rights and
to
the fundamental principles upon which the Covenant is premised”, and
_ the concept of adequacy.100
With regard to the first component, the Committee holds that the right to
adequate housing cannot be considered in isolation but requires, for its full
enjoyment,
the protection of other rights as well, such as “the concept of human dignity and
the
principle of non-discrimination, ... the right to freedom of expression, the right to
freedom of association (such as for tenants and other community-based groups),
the
right to freedom of residence and the right to participate in public decision-
making”.
Similarly, “the right not to be subjected to arbitrary or unlawful interference with
one’s
privacy, family, home or correspondence constitutes a very important dimension
in
defining the right to adequate housing.”101 In view of its particular complexity,
the
concept of adequacy will be dealt with separately.
7.2.3 The concept of adequacy
In the Committee’s opinion, “the concept of adequacy is particularly
significant in relation to the right to housing since it serves to underline a
number of
factors which must be taken into account in determining whether particular
forms of
shelter can be considered to constitute ‘adequate housing’ for the purposes of
the
Covenant. While adequacy is determined in part by social, economic, cultural,
climatic,
ecological and other factors, the Committee believes that it is nevertheless
possible to
identify certain aspects of the right that must be taken into account for this
purpose in
any particular context. They include the following:”102
_ Legal security of tenure: This means that “notwithstanding the type of
tenure, all
persons should possess a degree of security of tenure which guarantees legal
protection against forced eviction, harassment and other threats;”103
_ Availability of services, materials, facilities and infrastructure: “An
adequate
house must contain certain facilities essential for health, security, comfort and
nutrition. All beneficiaries of the right to adequate housing should have
sustainable
access to natural and common resources, safe drinking water, energy for
cooking,
heating and lighting, sanitation and washing facilities, means of food storage,
refuse
disposal, site drainage and emergency services;”104
Lawyers 713
99Ibid., p. 23, para. 7.
100Ibid., loc. cit.
101Ibid., p. 25, para. 9.
102Ibid., p. 23, para. 8.
103Ibid., p. 23, para. 8(a).
104Ibid., p. 24, para. 8(b).
_ Affordability: “Personal or household financial costs associated with housing
should be at such a level that the attainment and satisfaction of other basic
needs are
not threatened or compromised. Steps should be taken by States parties to
ensure
that the percentage of house-related costs is, in general, commensurate with
income
levels.” Moreover, “tenants should be protected by appropriate means against
unreasonable rent levels or rent increases;”105
_ Habitability: “Adequate housing must be habitable, in terms of providing the
inhabitants with adequate space and protecting them from cold, damp, heat,
rain,
wind or other threats to health, structural hazards, and disease vectors. The
physical
safety of occupants must be guaranteed as well. The Committee encourages
States
parties to comprehensively apply the [WHO] Health Principles of Housing;”106
_ Accessibility: “Adequate housing must be accessible to those entitled to it.
Disadvantaged groups must be accorded full and sustainable access to adequate
housing resources. Thus, such disadvantaged groups as the elderly, children, the
physically disabled, the terminally ill, HIV-positive individuals, persons with
persistent medical problems, the mentally ill, victims of natural disasters, people
living in disaster-prone areas and other groups should be ensured some degree
of
priority consideration in the housing sphere. Both housing law and policy should
take fully into account the special housing needs of these groups;”107
_ Location: “Adequate housing must be in a location which allows access to
employment options, health-care services, schools, child-care centres and other
social facilities. This is true both in large cities and in rural areas.” Further,
“housing
should not be built on polluted sites or in immediate proximity to pollution
sources
that threaten the right to health of the inhabitants;”108
_ Cultural adequacy: “The way housing is constructed, the building materials
used
and the policies supporting these must appropriately enable the expression of
cultural identity and diversity of housing. Activities geared towards development
or
modernization in the housing sphere should ensure that the cultural dimensions
of
housing are not sacrificed and that, inter alia, modern technological facilities, as
appropriate are also ensured.”109
7.2.4 Immediate legal obligations
In spite of the progressive nature of the legal undertakings incurred by States
parties to the Covenant, the Committee has defined a number of steps that they
are
required to take with immediate effect, regardless of their state of
development,110 for
example:
105Ibid., p. 24, para. 8(c).
106Ibid., p. 24, para. 8(d).
107Ibid., p. 24, para. 8(e). On the right to accessible housing for persons with disabilities, see also General
Comment No. 5, p. 35,
para. 33.
108Ibid., General Comment No. 4, p. 24, para. 8(f).
109Ibid., p. 25, para. 8(g).
110Ibid., p. 25, para. 10.
_ “States parties must give due priority to those social groups in unfavourable
conditions by giving them particular consideration. Policies and legislation should
correspondingly not be designed to benefit already advantaged social groups at
the
expense of others;”111
_ “While the most appropriate means of achieving the full realization of the right
to
adequate housing will inevitably vary significantly from one State party to
another,
the Covenant clearly requires that each State party take whatever steps are
necessary
for that purpose. This will almost invariably require the adoption of a national
housing strategy” in order to define “the objectives for the development of
shelter
conditions, ... the resources available to meet these goals and the most cost-
effective
way of using them and ... the responsibilities and time-frame for the
implementation
of the necessary measures”. Such a national housing strategy “should reflect
extensive genuine consultation with, and participation by, all those affected,
including the homeless, the inadequately housed and their representatives”.112
_ Effective monitoring: “Effective monitoring of the situation with respect to
housing is another obligation of immediate effect. For a State party to satisfy its
obligations under article 11(1) it must demonstrate, inter alia, that it has taken
whatever steps are necessary, either alone or on the basis of international
cooperation, to ascertain the full extent of homelessness and inadequate
housing
within its jurisdiction.”113
7.2.5 Domestic remedies
On the question of domestic legal remedies, “the Committee views many
component elements of the right to adequate housing as being at least
consistent with
the provision of [such] remedies.” They might include, for instance:
_ “legal appeals aimed at preventing planned evictions or demolitions through
the
issuance of court-ordered injunctions”;
_ “legal procedures seeking compensation following an illegal eviction”;
_ “complaints against illegal actions carried out or supported by landlords
(whether
public or private) in relation to rent levels, dwelling maintenance, and racial or
other
forms of discrimination”;
_ “allegations of any form of discrimination in the allocation and availability of
access
to housing”; and
_ “complaints against landlords concerning unhealthy or inadequate housing
conditions”.114
Lawyers 715
111Ibid., p. 25, para. 11.
113Ibid., p. 26, para. 13.
114Ibid., pp. 26-27, para. 17.
The right to adequate housing is an essential component of the
right to an adequate standard of living. It must be interpreted in the light
not only of other economic, social and cultural rights but also of civil and
political rights.
The principle of adequacy means that:
_ there must be legal security of tenure;
_ there must be availability of basic services, materials, facilities and
infrastructure;
_ the housing must be affordable, habitable, accessible and located close
to employment and other facilities;
_ the housing must be built so as not to jeopardize the health of its
occupants;
_ the housing must be culturally adequate.
imposes, in particular, the following immediate obligations on
States parties:
_ they must give particular consideration to social groups living in
unfavourable conditions;
_ they must almost invariably adopt a national housing plan to define
the objectives, resources, responsibilities and time frame of the
measures required;
_ they must effectively monitor the housing situation.
States parties must also provide domestic legal remedies, in
particular for cases of eviction and demolition of houses, discrimination,
illegal action by landlords, and unhealthy and inadequate housing
conditions.
7.2.6 Forced evictions
In its General Comment No. 4, the Committee states that “instances of forced
eviction are prima facie incompatible with the requirements of the Covenant and
can
only be justified in the most exceptional circumstances, and in accordance with
the
relevant principles of international law.”115 In General Comment No. 7, the
Committee
defines the term “forced evictions” as:
“the permanent or temporary removal against their will of individuals,
families and/or communities from the homes and/or land which they
occupy, without the provision of, and access to, appropriate forms of legal
or other protection. The prohibition on forced evictions does not,
however, apply to evictions carried out by force in accordance with the law
and in conformity with the provisions of the International Covenants on
Human Rights.”116
115Ibid., p. 27, para. 18.
116Ibid., pp. 49-50, para. 3.
The Committee points out that such evictions, while “manifestly breaching”
the rights enshrined in the International Covenant on Economic, Social and
Cultural
Rights, may also, owing to the interrelationship and interdependency which exist
among all human rights, “result in violations of civil and political rights, such as
the
right to life, the right to security of the person, the right to non-interference with
privacy, family and home and the right to the peaceful enjoyment of
possessions”.117 In
other words, in cases of forced eviction, States parties must not only
comply with
the requirements of the International Covenant on Economic, Social and
Cultural Rights but also with the relevant provisions of the
International
Covenant on Civil and Political Rights.
In situations where it may be necessary to impose limitations on the right to
adequate housing and the right not to be subjected to forced eviction as
guaranteed by
article 11(1) of the International Covenant on Economic, Social and Cultural
Rights,
“full compliance with article 4 of the Covenant is required”. Accordingly, the
rights
guaranteed may be subjected “only to such limitations as are determined by law
only in
so far as this may be compatible with the nature of these rights and solely for
the
purpose of promoting the general welfare in a democratic society”.118
In essence therefore, the obligations of States parties in relation to forced
evictions are based on article 11(1) of the Covenant “read in conjunction with
other
relevant provisions”. These obligations include, in particular:
_ “The State itself must refrain from forced evictions and ensure that the law is
enforced against its agents or third parties who carry out forced convictions;”119
_ Interpreting the words “all appropriate means” in article 2(1) in this context,
the
Committee states that “it is clear that legislation against forced evictions is an
essential basis upon which to build a system of effective protection. Such
legislation
should include measures which (a) provide the greatest possible security of
tenure to
occupiers of houses and land, (b) conform to the Covenant and (c) are designed
to
control strictly the circumstances under which evictions may be carried out. The
legislation must ... apply to all agents acting under the authority of the State or
who
are accountable to it. Moreover, ... States parties must ensure that legislative
and
other measures are adequate to prevent and, if appropriate, punish forced
evictions
carried out, without appropriate safeguards, by private persons or bodies;”120
_ States parties must comply with the provisions of articles 2(2) and 3 of the
Covenant, which impose an additional obligation upon them “to ensure that,
where
evictions do occur, appropriate measures are taken to ensure that no form of
discrimination is involved”. The Committee notes in this regard that “women,
children,
youth, older persons, indigenous people, ethnic and other minorities, and other
vulnerable individuals and groups all suffer disproportionately from the practice
of
forced eviction;”121
Lawyers 717
117Ibid., p. 50, para. 4.
118Ibid., p. 50, para. 5.
119Ibid., p. 50, para. 8.
120Ibid., p. 51, para. 9.
_ “Whereas some evictions may be justifiable, such as in the case of persistent
non-payment of rent or of damage to rented property without any reasonable
cause”, the competent authorities must “ensure that they are carried out in a
manner
warranted by a law which is compatible with the Covenant and that all the legal
recourses and remedies are available to those affected”;122
_ “Forced eviction and house demolition as a punitive measure are ...
inconsistent
with the norms of the Covenant;”123
_ “States parties shall ensure, prior to carrying out any evictions, and particularly
those
involving large groups, that all feasible alternatives are explored in consultation
with
the affected persons, with a view to avoiding, or at least minimizing, the need to
use
force. Legal remedies or procedures should be provided to those affected by the
eviction orders” as well as “adequate compensation for any property, both
personal
and real, which is affected. In this respect, it is pertinent to recall article 2.3 of
the
International Covenant on Civil and Political Rights, which requires States parties
to
ensure ‘an effective remedy’ for persons whose rights have been violated and
the
obligation upon the ‘competent authorities (to) enforce such remedies when
granted’;”124
_ “In cases where eviction is considered to be justified, it should be carried out in
strict compliance with the relevant provisions on international human rights law
and
in accordance with general principles of reasonableness and
proportionality.”
In this regard, the Committee on Economic, Social and Cultural Rights found it
“especially pertinent” to invoke the terms of General Comment No. 16 of the
Human Rights Committee, according to which “interference with a person’s
home
can only take place ‘in cases envisaged by the law’”, a law that “‘should be in
accordance with the provisions, aims and objectives of the Covenant and should
be,
in any event, reasonable in the particular circumstances’”. The Human Rights
Committee also indicated that relevant legislation must “specify in detail the
precise
circumstances in which such interferences may be permitted”;125
_ “Evictions should not result in individuals being rendered homeless or
vulnerable to
the violation of other human rights. Where those affected are unable to provide
for
themselves, the State party must take all appropriate measures, to the
maximum of
its available resources, to ensure that adequate alternative housing,
resettlement or
access to productive land, as the case may be, is available;”126
_ “Appropriate procedural protection and due process are essential aspects of all
human rights but are especially pertinent in relation to a matter such as forced
evictions which directly invokes a large number of the rights recognized in both
International Covenants on Human Rights. The Committee considers that the
procedural protections which should be applied in relation to forced evictions
include:
122Ibid., p. 51, para. 11.
123Ibid., p. 51, para. 12.
124Ibid., pp. 51-52, para. 13.
126Ibid., p. 52, para. 16.
(a) an opportunity for genuine consultation with those affected;
(b) adequate and reasonable notice for all affected persons prior to the
scheduled
date of eviction;
(c) information on the proposed evictions, and, where applicable, on the
alternative purpose for which the land or housing is to be used, to be made
available in reasonable time to all those affected;
(d) especially where groups of people are involved, government officials or their
representatives to be present during an eviction;
(e) all persons carrying out the eviction to be properly identified;
(f) evictions not to take place in particularly bad weather or at night unless the
affected persons consent otherwise;
(g) provision of legal remedies; and
(h) provision, where possible, of legal aid to persons who are in need of it to seek
redress from the courts.”127
Forced evictions are prima facie incompatible not only with the
International Covenant on Economic, Social and Cultural Rights but
also with the International Covenant on Civil and Political Rights.
Domestic legislation should provide effective protection against forced
evictions, including evictions carried out by private persons. The law
should provide, inter alia, the following guarantees:
Whenever evictions occur, they must conform to international human
rights law and must not involve any form of discrimination.
Forced eviction and demolition of houses as punitive measures are
prohibited.
Evictions must only be carried out after due notice and consultation with
the persons affected and there must be provision for adequate domestic
legal remedies and compensation for any property affected by the
eviction.
Evictions should not result in people being rendered homeless.
7.3 Relevant European case law:
The Selçuk and Asker case
Although the right to adequate housing is not, per se, guaranteed by the
European Convention on Human Rights, the right to respect for one’s private and
family life and home, as well as the right to peaceful enjoyment of one’s
possessions, are
guaranteed, respectively, by article 8 of the Convention and article 1 of Protocol
No. 1
to the Convention. Further, article 3 of the Convention provides that no person
“shall
be subjected to torture or to inhuman or degrading treatment or punishment”.
Lawyers 719
127Ibid., p. 52, para. 15.
In the case of Selçuk and Asker v. Turkey, the European Court of Human Rights
had to deal with allegations that the applicants’ property had been destroyed by
Turkish
security forces. Mrs. Selçuk was a widow and the mother of five children, while
Mr.
Asker was married and had seven children. Both were Turkish citizens of Kurdish
origin living in the village of Islamköy. The facts, “proved beyond reasonable
doubt”,
were as follows:128
In the morning of 16 June 1993, a large force of gendarmes arrived in
Islamköy, and a number of them, under the “apparent command” of CO Cömert,
went
to Mr. Asker’s house and set it on fire, thereby causing the destruction of the
property
and most of its contents. Villagers who came to see what was happening were
prevented from putting out the fire. Mr. and Mrs. Asker ran inside the house in an
attempt to save their possessions and this occurred either while the gendarmes
were
setting fire to the house by pouring petrol on it, or just before. A number of
gendarmes,
including CO Cömert, then proceeded to Mrs. Selçuk’s house and, despite her
protests,
poured petrol on it and set it on fire “by, or under the orders of, CO Cömert”.
Villagers
were again prevented from putting out the fire, which completely destroyed Mrs.
Selçuk’s house and its contents. About ten days later, a force of gendarmes
returned to
Islamköy where they set fire to, and thereby destroyed, a mill belonging to Mrs.
Selçuk
and others; CO Cömert was seen with the gendarmes at the mill on this
occasion.
The Court first examined the facts under article 3 of the Convention,
emphasizing that this article “enshrines one of the fundamental values of
democratic
society” and that “even in the most difficult of circumstances, such as the fight
against
organised terrorism and crime, the Convention prohibits in absolute terms
torture or
inhuman or degrading treatment or punishment.”129 The Court concluded that
the
treatment suffered by the applicants in this case was so severe as to constitute a
violation of article 3. It referred in particular to the fact that the applicants’
homes and
most of their property
“were destroyed by the security forces, depriving the applicants of their
livelihoods and forcing them to leave their village. It would appear that the
exercise was premeditated and carried out contemptuously and without
respect for the feelings of the applicants. They were taken unprepared; they
had to stand by and watch the burning of their homes; inadequate
precautions were taken to secure the safety of Mr and Mrs Asker; Mrs
Selçuk’s protests were ignored, and no assistance was provided to them
afterwards.”130
“Bearing in mind in particular the manner in which the applicants’ homes
were destroyed … and their personal circumstances, it is clear that they
must have been caused suffering of sufficient severity for the acts of the
security forces to be categorised as inhuman treatment within the
meaning of Article 3.”131
128For the summary of the facts as established, see Eur. Court HR, Case of Selçuk and Asker v. Turkey,
judgment of 24 April 1998,
Reports 1998-II, p. 900, paras. 27-30; see also pp. 904-905, paras. 50-57.
129Ibid., p. 909, para. 75.
130Ibid., p. 910, para. 77.
Moreover, “even if it were the case that the acts in question were carried out
without any intention of punishing the applicants, but instead to prevent their
homes
being used by terrorists or as a discouragement to others, this would not
provide a
justification for the ill-treatment.”132
The Court also found a violation of article 8 of the Convention and article 1 of
Protocol No. 1. It recalled in this context that “it established that security forces
deliberately destroyed the applicants’ homes and household property, and the
mill
partly owned by Mrs Selçuk, obliging them to leave Islamköy ... There [could] be
no
doubt that these acts, in addition to giving rise to violations of Article 3,
constituted
particularly grave and unjustified interferences with the applicants’ right to
respect for
their private and family lives and homes, and to the peaceful enjoyment of their
possessions.”133
The Court concluded that the Turkish Government had violated article 13 of
the European Convention since it had not carried out “a thorough and effective
investigation” as required by that article. The applicants therefore did not have
an
effective domestic remedy at their disposal for the violations of their rights under
the
Convention as required by article 13.134
The Selçuk and Asker case is an excellent example not only of the justiciability
of acts interfering with the right to respect for one’s home but also of the
fundamental
interdependence of rights and of the far-reaching and devastating consequences
that
the demolition of a person’s home and belongings can have for the person
concerned.
The next case chosen from South African jurisprudence confirms these
conclusions.
7.4 Relevant domestic case law:
The example of South Africa
The question of forced eviction was considered by the South African
Constitutional Court in the Grootboom and Others case, which was brought by
Mrs.
Grootboom on her own behalf and on behalf of 510 children and 390 adults who
had
allegedly been “rendered homeless as a result of their eviction from their
informal
homes”.135 The analysis in this case is of such relevance to the judicial protection
of
economic, social and cultural rights that it warrants extensive consideration.
The following is a brief description of the facts of the case.136 Mrs.
Grootboom and most other respondents had lived in an informal squatter
settlement
called Wallacedene where their shacks had no water, sewage or refuse removal
services.
Only 5 per cent of them had electricity. Having failed to obtain subsidized low-
cost
housing, the respondents left Wallacedene one day and put up their shacks and
shelters
on vacant land that was privately owned and had been ear-marked for low-cost
housing. They called the land “New Rust”. The owner obtained an eviction order
and
Lawyers 721
133Ibid., p. 911, paras. 86-87.
134Ibid., pp. 913-914, paras. 96-98.
135The Government of South Africa v. Irene Grootboom and Others, Case CCT 11/00, judgment of 4 October
2000, para. 4.
the respondents’ homes were bulldozed and burnt and their possessions
destroyed.
They put up new shelters on the Wallacedene sports field with such temporary
structures as they could find, but when the winter rains started shortly
afterwards “the
plastic sheeting they had erected afforded scant protection”. Having failed to
obtain
help, Mrs. Grootboom and the other respondents applied for an order directing
the
authorities on the basis of Section 26 of the South African Constitution to provide
“adequate basic temporary shelter or housing to the respondents and their
children
pending their obtaining permanent accommodation”.137
Justice Yacoob, with whom all other Justices concurred, wrote the judgment,
which contains a rich legal analysis of the right of access to adequate housing
under
South African constitutional law. However, only the major points of the judgment
can
be reflected here and only insofar as they concern Section 26 of the South
African
Constitution which states:
“(1) Everyone has the right to have access to adequate housing.
(2) The state must take reasonable legislative and other measures, within
its available resources, to achieve the progressive realisation of this right.
(3) No one may be evicted from their home, or have their home
demolished, without an order of court made after considering all the
relevant circumstances. No legislation may permit arbitrary evictions.”
On the question of justiciability: On the issue of whether socio-economic
rights are at all justiciable in South Africa, the Court stated clearly that this had
been
“put beyond question by the text of [the] Constitution as construed in the
Certification
judgment”. In response to the contention in that case that these rights were not
justiciable and should not have been contained in the new Constitution, the
Court had
held that:
“‘[T]hese rights are, at least to some extent, justiciable. As we have stated ...
many of the civil and political rights entrenched in the [constitutional text
before this Court for certification in that case] will give right to similar
budgetary implications without compromising their justiciability. The fact
that socio-economic rights will almost invariably give rise to such
implications does not seem to us to be a bar to their justiciability. At the
very minimum, socio-economic rights can be negatively protected from
improper invasion.’”138
The question was not therefore whether socio-economic rights were
justiciable under the South African Constitution “but how to enforce
them in a
given case”.139
137Ibid., para. 13. This chapter will not deal with the aspect of the case relating to children’s right to shelter
under article 28(1)(c)
of the South African Constitution.
138Ibid., para. 20.
139Ibid., loc. cit.
On the interdependence of rights: Interpreting the obligations imposed on
the State by Section 26, the Court pointed out that the Constitution entrenches
both
civil and political rights and social and economic rights, and that all these rights
“are
inter-related and mutually supporting”. In the Court’s view, “there can be no
doubt that
human dignity, freedom and equality, the foundational values of our society, are
denied
those who have no food, clothing or shelter. Affording socio-economic rights to
all
people therefore enables them to enjoy the other rights enshrined in Chapter 2
[of the
Constitution]. The realisation of these rights is also key to the advancement of
race and
gender equality and the evolution of a society in which men and women are
equally able
to achieve their full potential.”140
The Court added that “the right of access to adequate housing cannot be seen
in isolation. There is a close relationship between it and the other socio-economic
rights
[which] must all be read together in the setting of the Constitution as a whole.”
In the
words of the Court:
“The state is obliged to take positive action to meet the needs of those
living in extreme conditions of poverty, homelessness or intolerable
housing. Their interconnectedness needs to be taken into account in
interpreting the socio-economic rights, and, in particular, in determining
whether the state has met its obligations in terms of them.”141
On the impact of international law on South African constitutional law:
The South African Constitution provides in Section 39(1)(b) that, “when
interpreting
the Bill of Rights, a court, tribunal or forum ... must consider international law.”
According to the Court, “the relevant international law can be a guide to
interpretation,
but the weight to be attached to any particular principle or rule of international
law will
vary. However, where the relevant principle of international law binds South
Africa, it
may be directly applicable.”142
In examining the extent to which articles 11(1) and 2(1) of the International
Covenant on Economic, Social and Cultural Rights may be a guide to an
interpretation
of Section 26 of the South African Constitution, the Court noted that there are
two
differences between the legal instruments insofar as they relate to housing:
first, “the
Covenant provides for a right to adequate housing while section 26 provides for
the right of
access to adequate housing” and, second, “the Covenant obliges states parties
to take
appropriate steps which must include legislation while the Constitution obliges
the South
African state to take reasonable legislative and other measures.”143
In response to the argument made to the Court that the States parties to the
International Covenant have, as stated by the Committee on Economic, Social
and
Cultural Rights, an obligation to guarantee a minimum core of obligations to
ensure
the satisfaction of, at the very least, the minimum essential levels of each right,
the
Court noted that “the determination of a minimum core in the context of ‘the
right to
have access to adequate housing’ presents difficult questions.” It did not in the
event
Lawyers 723
140Ibid., para. 23.
143Ibid., para. 28.
find it necessary to decide whether it was “appropriate for a court to determine
in the
first instance the minimum core content of a right”.144 It noted, however, that the
Committee had not specified what the minimum core precisely means.145
On the domestic right of access to adequate housing: With regard to the
South African constitutional requirement that everyone has the right to have
access to
adequate housing, the Court ruled that all of the following conditions have to be
met:
_ “there must be land;”
_ “there must be services;”
_ “there must be a dwelling;” and
_ “access to land for the purpose of housing is therefore included in the right of
access
to adequate housing in section 26.”146
It follows that “the state must create the conditions for access to adequate
housing for people at all economic levels of our society.”147 Although this
obligation
depends on the particular circumstances and context of each place or person
involved,
“the poor are particularly vulnerable and their needs require special
attention.”148
On the State’s positive constitutional obligation: The positive obligation
imposed on the State under Section 26(2) of the South African Constitution
“requires
the state to devise a comprehensive and workable plan to meet its obligation”.
However, this obligation “is not an absolute or unqualified one” but is defined by
“three key elements”:
_ the obligation to “take reasonable legislative and other measures’”;
_ the obligation “to achieve the progressive realisation” of the right; and
_ the obligation to act “within available resources”.149
With regard to the requirement that the state take “reasonable legislative
and other measures”, the Court held that “a reasonable programme ... must
clearly
allocate responsibilities and tasks to the different spheres of government and
ensure
that the appropriate financial and human resources are available.”150 Further, it
must be
a “comprehensive” programme and “the measures must establish a coherent
public
housing programme directed towards the progressive realisation of the right of
access
to adequate housing within the state’s available means ... The precise contours
and
content of the measures to be adopted are primarily a matter for the legislature
and the
executive. They must, however, ensure that the measures they adopt are
reasonable.”151
It was, however, “necessary to recognise that a wide range of possible measures
could
be adopted by the state to meet its obligations. Many of these would meet the
144Ibid., para. 33.
145Ibid., para. 30.
147Ibid., loc. cit.
148Ibid., paras. 35-37; quote from para. 36.
150Ibid., paras. 39; emphasis added.
151Ibid., paras. 40-41.
requirement of reasonableness.”152 On the other hand, as further held by the
Court,
“mere legislation is not enough. The state is obliged to act to achieve the
intended
result, and the legislative measures will [therefore] invariably have to be
supported by
appropriate, well-directed policies and programmes implemented by the
executive.
These policies and programmes must be reasonable both in their conception and
their
implementation ... An otherwise reasonable programme that is not implemented
reasonably will not constitute compliance with the state’s obligations.”153
What is meant then by the term “reasonable” in this context? The Court
took the following view:
“43. In determining whether a set of measures is reasonable, it will be
necessary to consider housing problems in their social, economic and
historical context and to consider the capacity of institutions responsible
for implementing the programme. The programme must be balanced
and flexible and make appropriate provision for attention to housing
crises and to short, medium and long term needs. A programme that
excludes a significant segment of society cannot be said to be reasonable.
Conditions do not remain static and therefore the programme will require
continuous review.
44. Reasonableness must also be understood in the context of the
Bill of Rights as a whole. The right of access to adequate housing is
entrenched because we value human beings and want to ensure that they
are afforded their basic human needs. A society must seek to ensure that
the basic necessities of life are provided to all if it is to be a society based on
human dignity, freedom and equality. To be reasonable, measures cannot
leave out of account the degree and extent of the denial of the right they
endeavour to realise. Those whose needs are the most urgent and whose
ability to enjoy all rights therefore is most in peril, must not be ignored by
the measures aimed at achieving realisation of the right. It may not be
sufficient to meet the test of reasonableness to show that the measures are
capable of achieving a statistical advance in the realisation of the right.
Furthermore, the Constitution requires that everyone must be treated with
care and concern. If the measures, though statistically successful, fail to
respond to the needs of those most desperate, they may not pass the
test.”154
With regard to the obligation to achieve the progressive realization of the
right of access to adequate housing, the Court held that “the term
‘progressive
realisation’ shows that it was contemplated that the right could not be realised
immediately. But the goal of the Constitution is that the basic needs of all in our
society
be effectively met and the requirement of progressive realisation means that the
state
must take steps to achieve this goal.” This means more particularly:
Lawyers 725
152Ibid., para. 41.
153Ibid., para. 42.
“that accessibility should be progressively facilitated: legal, administrative,
operational and financial hurdles should be examined and, where possible,
lowered over time. Housing must be made more accessible not only to a
larger number of people but to a wider range of people as time
progresses.”155
In support of its reasoning with regard to the term “progressive realisation” in
Section 26(2) of the Constitution of South Africa, a term that was taken, in
particular,
from article 2(1) of the International Covenant on Economic, Social and Cultural
Rights, the Court referred to paragraph 9 of General Comment No. 3, in which
the
Committee on Economic, Social and Cultural Rights “helpfully analysed this
requirement in the context of housing”.156 Although the General Comment was
intended to explain States parties’ obligations under the Covenant, it was “also
helpful
in plumbing the meaning of ‘progressive realisation’ in the context of” the South
African Constitution. According to the Court:
“The meaning ascribed to the phrase is in harmony with the text in which
the phrase is used in our Constitution and there is no reason not to accept
that it bears the samemeaning in the Constitution as in the document from
which it was so clearly derived.”157
It remained for the Court to explain the meaning of “the third defining aspect
of the obligation to take the requisite measures”, namely “that the obligation
does not
require the state to do more than its available resources permit”.158 In
the view of
the Court, “this means that both the content of the obligation in relation to the
rate at
which it is achieved as well as the reasonableness of the measures employed to
achieve
the result are governed by the availability of resources.” In other words, “there is
a
balance between goals and means. The measures must be calculated to attain
the goal
expeditiously and effectively but the availability of resources is an important
factor in
determining what is reasonable.”159
On the application of the constitutional requirements to the national
Housing Act: The Court then analysed the national Housing Act, which provides
a
framework establishing the responsibilities and functions of each sphere of
government in respect of housing. It concluded that “it emerges from the
general
principles read together with the functions of national, provincial and local
government
that the concept of housing development, as defined, is central to the Act.
Housing
development as defined seeks to provide citizens and permanent residents with
access
to permanent residential structures with secure tenure ensuring internal and
external
privacy and to provide adequate protection against the elements.”160 However,
the
Housing Act does not contemplate “the provision of housing that falls short of
the
definition of housing development in the Act”. In other words, there is no express
provision
155Ibid., para. 45.
156Ibid. This aspect of the Committee’s General Comment No. 3 was dealt with in sub-section 5.1.3.
157See the Grootboom judgment, para. 45.
159Ibid., loc. cit.
160Ibid., para. 51.
“to facilitate access to temporary relief for people who have no access to
land, no roof over their heads, for people who are living in intolerable
conditions and for people who are in crisis because of natural disasters
such as floods and fires, or because their homes are under threat of
demolition. These are people in desperate need. Their immediate need can
be met by relief short of housing which fulfils the requisite standards of
durability, habitability and stability encompassed by the definition of
housing development in the Act.”161
Characterizing the execution of the housing programme as “a major
achievement”, the Court nevertheless had to answer the question whether the
measures
adopted were “reasonable within the meaning of section 26 of the
Constitution”.162 In
so doing, the Court found, in particular, that the allocation of responsibilities and
functions had been “coherently and comprehensively addressed”; that the
programme
was “not haphazard” but represented “a systematic response to a pressing
social need”;
that, although problems of implementation existed in some areas, the evidence
suggested that the State was “actively seeking to combat these difficulties”.163
It remained to be decided, however, whether the nationwide housing
programme was “sufficiently flexible to respond to those in desperate
need in our
society and to cater appropriately for immediate and short-term
requirements”.
This had to be done “in the context of the scope of the housing problem” in Cape
Metro, which was “acute”, “desperate” and “compounded by rampant
unemployment
and poverty”.164 It was “common cause” that, except for the newly designed
Cape
Metro land programme, which did not exist when the Grootboom case was
launched,
there was “no provision in the nationwide housing programme as applied within
Cape
Metro for people in desperate need”.165 The programme therefore also fell short
of
“obligations imposed upon national government to the extent that it [failed] to
recognise that the state must provide for relief for those in desperate need”. As
stated
by the Court, such people “are not to be ignored in the interests of an overall
programme focussed on medium and long-term objectives. It is essential that a
reasonable part of the national housing budget be devoted to this, but the
precise
allocation is for national government to decide in the first instance.”166
With regard to the conduct of the appellants towards the respondents in
this case, the Court emphasized that “all levels of government must ensure that
the
housing programme is reasonably and appropriately implemented in the light of
all the
provisions in the Constitution ... Every step at every level of government must be
consistent with the constitutional obligation to take reasonable measures to
provide
adequate housing.”167 However, Section 26 of the Constitution was “not the only
provision relevant to a decision as to whether state action at any particular level
of
government is reasonable and consistent with the Constitution”:
Lawyers 727
162Ibid., paras. 53-54.
163Ibid., para. 54.
164Ibid., paras. 56, 58-59; emphasis added.
165Ibid., para. 63.
166Ibid., para. 66.
167Ibid., para. 82.
“83. ... The proposition that rights are interrelated and are all equally
important is not merely a theoretical postulate. The concept has immense
human and practical significance in a society founded on human dignity,
equality and freedom. It is fundamental to an evaluation of the
reasonableness of state action that account be taken of the inherent dignity
of human beings. The Constitution will be worth infinitely less than its
paper if the reasonableness of state action concerned with housing is
determined without regard to the fundamental constitutional value of
human dignity. Section 26, read in the context of the Bill of Rights as a
whole, must mean that the respondents have a right to reasonable action by
the state in all circumstances and with particular regard to human dignity.
In short, I emphasise that human beings are required to be treated as
human beings. This is the backdrop against which the conduct of the
respondents towards the appellants must be seen.”168
While the national legislature recognized this, consideration had to be given to
“whether the state action (or inaction) in relation to the respondents met the
required
constitutional standard”.169 The Court pointed out that “there was no suggestion
however that the respondents’ circumstances before their move to New Rust was
anything but desperate. There is nothing in the papers to indicate any plan by
the
municipality to deal with the occupation of vacant land if it occurred.”170
Moreover,
contrary to what could have been expected, the municipality had done nothing
when
the respondents began moving to New Rust “and the settlement grew by leaps
and
bounds”.171 As to the eviction itself, it was funded by the municipality and carried
out
without any evidence of effective mediation. “The state had an obligation to
ensure, at
the very least, that the eviction was humanely executed. However, the eviction
was
reminiscent of the past and inconsistent with the values of the Constitution. The
respondents were evicted a day early and to make matters worse, their
possessions and
building materials were not merely removed, but destroyed and burnt.”172
Section 26(1)
of the Constitution “burdens the state with at least a negative obligation in
relation to
housing. The manner in which the eviction was carried out resulted in a breach
of this
obligation.”173
Summarizing the case, the Court stated that it showed “the desperation of
hundreds of thousands of people living in deplorable conditions throughout the
country. The Constitution obliges the state to act positively to ameliorate these
conditions. The obligation is to provide access to housing, health-care, sufficient
food
and water, and social security to those unable to support themselves and their
dependants. The state must also foster conditions to enable citizens to gain
access to
land on an equitable basis. Those in need have a corresponding right to demand
that
this be done.”174 The Court was conscious that it was “an extremely difficult task
for the
state to meet these obligations” in the conditions prevailing in the country, but
this was
168Ibid., para. 83.
169Ibid., paras. 84-85.
170Ibid., para. 86.
171Ibid., para. 87.
172Ibid., para. 88.
173Ibid.
174Ibid., para. 93.
an aspect that was recognized by the Constitution, which “expressly provides
that the
state is not obliged to go beyond available resources or to realise these rights
immediately”.175 It stressed nevertheless that “despite all these qualifications,
these are
rights, and the Constitution obliges the state to give effect to them. This is an
obligation
that courts can, and in appropriate circumstances, must enforce.”176
The Court concluded that while Section 26 of the Constitution does not
entitle the respondents “to claim shelter or housing immediately upon demand”,
it does
oblige the State “to devise and implement a coherent, co-ordinated programme
designed to meet its section 26 obligations”. However, the programme that was
in force
in the Cape Metro at the time that this application was brought, “fell short of the
obligations imposed upon the state by section 26(2) in that it failed to provide for
any
form of relief to those desperately in need of access to housing.”177
For all these reasons, the Court found it “necessary and appropriate to make a
declaratory order” whereby the State was required “to act to meet the obligation
imposed upon it by section 26(2) of the Constitution. This includes the obligation
to
devise, fund, implement and supervise measures to provide relief to those in
desperate
need.”178
The abovementioned work of the Committee on Economic, Social and
Cultural Rights, the European Court of Human Rights and the South
African Constitutional Court with regard to the right to adequate
housing confirms several important aspects of States’ general legal
obligations to enforce economic, social and cultural rights, namely:
_ that it is indispensable to consider the effective implementation of
economic, social and cultural rights also in the light of the effective
implementation of civil and political rights;
_ that economic, social and cultural rights or at least some aspects of
such rights are justiciable and consequently lend themselves to judicial
adjudication;
_ that legal terms are meant to have an effect and that, consequently:
_ terms like “taking steps” to achieve “progressively” the full
realization of rights impose immediate positive duties on Governments
in terms of conduct, result and effect;
_ that the reference to “all appropriate means” implies that there is a
built-in flexibility that makes it possible in any given case to strike a
fair balance between the legal duties of a given State and the means at
its disposal.
Lawyers 729
175Ibid., para. 94.
176Ibid., loc. cit.
177Ibid., para. 95.
178Ibid., para. 96.
8. Case-Study II: The Right to

Health
The second right to be considered in some more detail in this chapter is the
right to health. The analysis will be based on article 12 of the International
Covenant on
Economic, Social and Cultural Rights and it will also show how the right to health
has
been dealt with by the Supreme Courts of Canada and India. Contrary to the
constitutional law of South Africa, neither Canadian nor Indian constitutional law
expressly provides for the right to health.
Cultural Rights: article 12
The right to health is recognized in article 12 of the Covenant, which reads:
“1. The States Parties to the present Covenant recognize the right of
everyone to the enjoyment of the highest attainable standard of physical
and mental health.
2. The steps to be taken by the States Parties to the present Covenant to
achieve the full realization of this right shall include those necessary for:
(a) The provision for the reduction of the stillbirth-rate and of
infant mortality and for the healthy development of the child;
(b) The improvement of all aspects of environmental and industrial
hygiene;
(c) The prevention, treatment and control of epidemic, endemic,
occupational and other diseases;
(d) The creation of conditions which would assure to all medical
service and medical attention in the event of sickness.”
The Committee on Economic, Social and Cultural Rights has dealt with the
right to health in several General Comments, which will be reviewed only in
relatively
broad terms in this section. For more details, readers are referred to the full text
of
General Comments Nos. 5, 6 and 14.179
The right protected by article 12 of the Covenant is the right to enjoy “the
highest attainable standard of physical and mental health”. In General Comment
No.
14, the Committee deals at length with both the normative content of article 12
and the
corresponding legal obligations of States parties.
The right to health is included in numerous other international instruments,
such as:
_ The Universal Declaration of Human Rights – article 25(1);
_ The International Convention on the Elimination of All Forms of Racial
Discrimination – article 5(e)(iv);
179See, for example, United Nations Compilation of General Comments by Human Rights Treaty Bodies, pp.
28, 38 and 90 respectively.
_ The Convention on the Elimination of All Forms ofDiscrimination against
Women
– article 11(1)(f);
_ The Convention on the Rights of the Child – article 24;
_ The African Charter on Human and Peoples’ Rights – article 16;
_ The Additional Protocol to the American Convention on Human Rights in the
Area
of Economic, Social and Cultural Rights – article 10;
_ The European Social Charter (Revised) – article 11.
As a general point of departure, the Committee on Economic, Social and
Cultural Rights emphasizes that health “is a fundamental human right
indispensable for
the exercise of other human rights” and that every human being is entitled to
the
enjoyment of “the highest attainable standard of health conducive to living a life
in
dignity”.180 More particularly
“The right to health is closely related to and dependent upon the
realization of other human rights, as contained in the International Bill of
Rights, including the rights to food, housing, work, education, human
dignity, life, non-discrimination, equality, the prohibition against torture,
privacy, access to information, and the freedoms of association, assembly
and movement. These and other rights and freedoms address integral
components of the right to health.”181
In the Committee’s view, the reference to “the highest attainable standard of
physical and mental health” is not confined to the right to health care but
“embraces a
wide range of socio-economic factors that promote conditions in which people
can
lead a healthy life, and extends to the underlying determinants of health, such as
food
and nutrition, housing, access to safe and potable water and adequate
sanitation, safe
and healthy working conditions, and a healthy environment”.182
Moreover, according to the Committee, the right to health includes certain
components which are legally enforceable. “For example, the principle of
non-discrimination in relation to health facilities, goods and services is legally
enforceable in numerous national jurisdictions.”183
8.1.1 The normative content of article 12(1)
First, the right to health as defined in article 12(1) “is not to be understood as a
right to be healthy”. Second, it is a right that contains “both freedoms and
entitlements”.184 The Committee notes that “ the freedoms include the right to
control
one’s health and body, including sexual and reproductive freedom, and the right
to be
free from interference, such as the right to be free from torture, non-consensual
medical treatment and experimentation. By contrast, the entitlements include
the right
Lawyers 731
180Ibid., General Comment No. 14, p. 90, para. 1.
181Ibid., p. 90, para. 3.
182Ibid., pp. 90-91, para. 4; see also in further detail p. 92, para. 11.
183Ibid. p. 90, para. 1, including the footnote on p. 106.
184Ibid., p. 91, para. 8.
to a system of health protection which provides equality of opportunity for
people to
enjoy the highest attainable level of health.”185
Moreover, “the notion of ‘the highest attainable standard of health’ ... takes
into account both the individual’s biological and socio-economic preconditions
and a
State’s available resources.” As good health cannot for various reasons be
ensured by a
State, “the right to health must be understood as a right to the enjoyment of
a variety
of facilities, goods, services and conditions necessary for the
realization of the
highest attainable standard of health.”186
This means, more specifically, that “the right to health in all its forms and at all
levels contains the following interrelated and essential elements, the precise
application
of which will depend on the conditions prevailing in a particular State party”:
_ availability: “Functioning public health and health-care facilities, goods and
services, as well as programmes, have to be available in sufficient quantity
within the
State party;”
_ accessibility: “Health facilities, goods and services have to be accessible to
everyone ... within the jurisdiction of the State party.” The four dimensions of
accessibility are the principle of non-discrimination, physical accessibility,
economic accessibility and information accessibility, which includes the
right to
seek, receive and impart information and ideas concerning health issues;
_ acceptability: “All health facilities, goods and services must be respectful of
medical ethics and culturally appropriate;”
_ quality: “As well as being culturally acceptable, health facilities, goods and
services
must ... be scientifically and medically appropriate and of good quality.”187
8.1.2 The meaning of the provisions of article 12(2)
While article 12(1) provides a definition of the right to health, article 12(2),
“enumerates illustrative, non-exhaustive examples of States parties’
obligations”.188
These obligations may be summarized as follows:
_ “The provision for the reduction of the stillbirth-rate and of infant
mortality
and for the healthy development of the child” – article 12(2)(a):
According to
the Committee, this provision “may be understood as requiring measures to
improve child and maternal health, sexual and reproductive health services,
including access to family planning, pre- and post-natal care, emergency
obstetric
services and access to information, as well as to resources necessary to act on
that
information”. In interpreting this provision it is necessary also to consider the
terms
of the Convention on the Rights of the Child.189
187Ibid., pp. 92-93, para. 12; emphasis added; footnotes omitted.
188Ibid., p. 91, para. 7.
189Ibid., p. 93, para. 14, and pp. 95-96, para. 22; footnotes omitted.
_ “The improvement of all aspects of environmental and industrial
hygiene” –
article 12(2)(b): This obligation comprises, inter alia: “preventive measures in
respect of occupational accidents and diseases; the requirement to ensure an
adequate supply of safe and potable water and basic sanitation; the prevention
and
reduction of the population’s exposure to harmful substances”. The term
“industrial hygiene” refers to “the minimization, so far as is reasonably
practicable,
of the causes of health hazards inherent in the working environment”. Article
12.2(b) also embraces, inter alia, adequate housing and safe and hygienic
working
conditions.190
_ “The prevention, treatment and control of epidemic, endemic,
occupational
and other diseases” – article 12(2)(c): This provision “requires the
establishment
of prevention and education programmes for behaviour-related health concerns
such as sexually transmitted diseases, in particular HIV/AIDS, and those
adversely
affecting sexual and reproductive health, and the promotion of social
determinants
of good health, such as environmental safety, education, economic development
and gender equity. The right to treatment includes the creation of a system of
urgent medical care in cases of accidents, epidemics and similar health hazards,
and
the provision of disaster relief and humanitarian assistance in emergency
situations.
The control of diseases refers to States’ individual and joint efforts to, inter
alia,
make available relevant technologies, ... the implementation and enhancement
of
immunization programmes and other strategies of infectious disease control.”191
_ “The creation of conditions which would assure to all medical service
and
medical attention in event of sickness” – article 12(2)(d): This provision
relates
to both physical and mental health and “includes the provision of equal and
timely
access to basic preventive, curative, rehabilitative health services and health
education; regular screening programmes; appropriate treatment of prevalent
diseases, illnesses, injuries and disabilities, preferably at community level; the
provision of essential drugs; and appropriate mental health treatment and care”.
A
further important aspect of this obligation is the furtherance of popular
participation in health services such as through the organization of the health
sector
and the insurance system.192
In implementing article 12 of the Covenant, States parties naturally also have
to consider their legal duty not to discriminate between people in general
or
between men and women (arts. 2(2) and 3 of the Covenant).193 In order to
eliminate
discrimination against women in the health sector there is, in particular, “a need
to
develop and implement a comprehensive national strategy for promoting
women’s
right to health throughout their life span. Such a strategy should include
interventions
aimed at the prevention and treatment of diseases affecting women, as well as
policies
to provide access to a full range of high quality and affordable health care,
including
sexual and reproductive services.”194
Lawyers 733
190Ibid., pp. 93-94, para. 15.
192Ibid., p. 94, para. 17.
193Ibid., pp. 94-95, paras. 18-19.
194Ibid., p. 95, para. 21.
Further, persons with disabilities and elderly persons all have the right to
health under article 12(1) of the Covenant and they have the right to be provided
with
the same level of medical care as other members of the society in which they
live.
Moreover, the right to physical and mental health implies, for instance, “the right
to
have access to, and to benefit from, those medical and social services – including
orthopaedic devices – which enable persons with disabilities to become
independent,
prevent further disabilities and support their social integration”.195 In the case of
the
elderly, prevention through regular check-ups suited to their needs “plays a
decisive
role” as does rehabilitation by maintaining the functional capacities of elderly
persons,
“with a resulting decrease in the cost of investments in health care and social
services”.196 Indigenous peoples also have a right under article 12 “to specific
measures to improve their access to health services and care. These health
services
should be culturally appropriate, taking into account traditional preventive care,
healing
practices and medicines.”197
The right to health as guaranteed by the International Covenant on
Economic, Social and Cultural Rights means the right to enjoy facilities,
goods and services, and conditions necessary for the realization of the
highest attainable standard of health. The right includes freedom to
control one’s own health and body and the right of access to a
non-discriminatory system of health protection.
The health facilities must be available, accessible, acceptable
and of good quality.
Vulnerable groups such as persons with disabilities, women, elderly
persons and indigenous peoples have the right to specific measures suited
to their needs.
8.1.3 The obligations of States parties
The Committee on Economic, Social and Cultural Rights divides the legal
obligations of States parties under the International Covenant on Economic,
Social and
Cultural Rights into the following four categories: general, specific, international
and
core obligations. Some of the main elements of the first three categories will be
summarized in this sub-section, while the core obligations will be dealt with
separately
below.
_ General legal obligations: “While the Covenant provides for progressive
realization and acknowledges the constraints due to the limits of available
resources,
it also imposes on States parties various obligations which are of immediate
effect.” Thus, the right to health, as guaranteed by article 12, must be exercised
“without discrimination of any kind” (art. 2(2)) and steps must be taken (art.
2(1))
towards its full realization. “Such steps must be deliberate, concrete, and
targeted
195Ibid., p. 96, para. 26, read in conjunction with General Comment No. 5, p. 35, para. 34.
196Ibid., General Comment No. 14, p. 96, para. 25, read in conjunction with General Comment No. 6, p. 45,
para. 35.
197Ibid., General Comment No. 14, pp. 96-97, para. 27.
towards the full realization of the right to health ... [P]rogressive realization
means that States parties have a specific and continuing obligation to
move as
expeditiously and effectively as possible towards the full realization of
article
12.” Deliberately retrogressive measures, which are strongly presumed not to be
permissible, have to be duly justified by reference to all rights guaranteed by the
Covenant and the State party’s “maximum available resources”.198
Lastly, States parties have the obligations “to respect, protect, and fulfil … The
obligation to respect requires States to refrain from interfering directly or
indirectly
with the enjoyment of the right to health The obligation to protect requires
States to
take measures that prevent third parties from interfering with article 12
guarantees.
Finally, the obligation to fulfil requires States to adopt appropriate legislative,
administrative, budgetary, judicial, promotional and other measures towards the
full
realization of the right to health.”199
_ Specific legal obligations: The obligations to respect, protect and fulfil the
right to
health have been reviewed in greater detail by the Committee on Economic,
Social
and Cultural Rights in General Comment No. 14. The obligation to respect the
right
to health means, for instance, that States must refrain “from denying or limiting
equal access for all persons, including prisoners or detainees, minorities, asylum
seekers and illegal immigrants, to preventive, curative and palliative health
services;
abstaining from enforcing discriminatory practices as States policy; and
abstaining
from imposing discriminatory practices relating to women’s health status and
needs.” States must furthermore refrain, inter alia, “from marketing unsafe
drugs
and from applying coercive medical treatments, unless on an exceptional basis
for
the treatment of mental illness or the prevention and control of communicable
diseases”. They should also refrain “from limiting access to contraceptives and
other means of maintaining sexual and reproductive health” and “from
unlawfully
polluting air, water and soil, e.g. through industrial waste”. Lastly, nuclear,
biological
or chemical weapons should not be used or tested “if such testing results in the
release of substances harmful to human health”.200
The obligation to protect includes “the duties of States to adopt legislation or to
take other measures ensuring equal access to health care and health-related
services
provided by third parties; to ensure that privatization of the health sector does
not
constitute a threat to the availability, accessibility, acceptability and
quality of
health facilities, foods and services; to control the marketing of medical
equipment
and medicines by third parties; and to ensure that medical practitioners and
other
health professionals meet appropriate standards of education, skill and ethical
codes
of conduct. States are also obliged to ensure that harmful social or traditional
practices do not interfere with access to pre- and post-natal care and
family-planning; to prevent third parties from coercing women to undergo
traditional practices, e.g. female genital mutilation; and to take measures to
protect
all vulnerable or marginalized groups of society, in particular women, children,
Lawyers 735
199Ibid., p. 98, para. 33.
200Ibid., p. 98, para. 34.
adolescents and older persons, in the light of gender-based expressions of
violence.”201
The obligation to fulfil “requires States parties, inter alia, to give sufficient
recognition to the right to health in the national political and legal systems,
preferably by way of legislative implementation, and to adopt a national health
policy with a detailed plan for realizing the right to health. States must ensure
provision of health care, including immunization programmes against the major
infectious diseases, and ensure equal access to all to the underlying
determinants of
health, such as nutritiously safe food and potable drinking water, basic sanitation
and adequate housing and living conditions.” The obligations also include, for
instance, “the provision of a public, private or mixed health insurance system
which
is affordable for all”. Lastly, the legal duty to fulfil also comprises specific
obligations to facilitate, provide, and promote the right to health.202
_ International obligations: States parties have the obligation “to take steps,
individually and through international assistance and cooperation, especially
economic and technical, towards the full realization of the rights recognized in
the
Covenant, such as the right to health”. In the spirit of article 56 of the Charter of
the
United Nations, articles 12, 2(1) and (2), 22 and 23 of the Covenant and the
Alma-Ata Declaration on Primary Health Care, “States parties should recognize
the
essential role of international cooperation and comply with their commitment to
take joint and separate action to achieve the full realization of the right to
health.”
States parties also “have to respect the enjoyment of the right to health in other
countries, and to prevent third parties from violating the right in other countries”
if
they are able to do so in accordance with international law. States parties have
“a
joint and individual responsibility” based both on the Charter of the United
Nations
and the resolutions adopted by the General Assembly and the World Health
Assembly, “to cooperate in providing disaster relief and humanitarian assistance
in
times of emergency, including assistance to refugees and internally displaced
persons”. Lastly, States parties should “refrain at all times from imposing
embargoes or similar measures restricting the supply of another State with
adequate
medicines and medical equipment”.203
8.1.4 The core obligations
The core obligations pertaining to the right to health are aimed at ensuring the
satisfaction of minimum essential levels of this right. They are obligations that
States
parties must comply with at all times, since they are considered non-
derogable.204 These
core obligations have been defined by the Committee on the basis of article 12
read in
conjunction with the Programme of Action of the International Conference on
Population and Development and the Alma-Ata Declaration. In the Committee’s
view,
they include at least the following obligations:
202Ibid., p. 99, paras. 36-37; see also p. 98, para. 98.
203Ibid., pp. 99-100, paras. 38-41.
_ “To ensure the right of access to health facilities, goods and services on a
non-discriminatory basis, especially for vulnerable or marginalized groups”;
_ “To ensure access to the minimum essential food which is nutritionally
adequate
and safe, to ensure freedom from hunger to everyone”;
_ “To ensure access to basic shelter, housing and sanitation, and an adequate
supply
of safe and potable water”;
_ “To provide essential drugs, as from time to time defined under the WHO
Action
Programme on Essential Drugs”;
_ “To ensure equitable distribution of all health facilities, goods and services”;
_ “To adopt and implement a national public health strategy and plan of action,
on the
basis of epidemiological evidence, addressing the health concerns of the whole
population; the strategy and plan of action shall be devised, and periodically
reviewed, on the basis of a participatory and transparent process; they shall
[also]
include methods, such as right to health indicators and benchmarks, by which
progress can be closely monitored; the process by which the strategy and plan of
action are devised, as well as their content, shall give particular attention to all
vulnerable or marginalized groups.”205
The Committee has also confirmed that “the following are obligations of
comparable priority”:
_ “To ensure reproductive, maternal (pre-natal as well as post-natal) and child
health
care”;
_ “To provide immunization against the major infectious diseases occurring in
the
community”;
_ “To take measures to prevent, treat and control epidemic and endemic
diseases”;
_ “To provide education and access to information concerning the main health
problems in the community, including methods of preventing and controlling
them”;
_ “To provide appropriate training for health personnel, including education on
health and human rights”.206
These eleven core obligations relating to the right to health provide helpful
guidance to States parties in the implementation of their treaty obligations at the
domestic level. It should be noted, in particular, that the right to shelter and
housing is
mentioned as a prerequisite for effectively guaranteeing the right to health. The
essential importance of access to adequate housing for a person’s health has
also been
emphasized by the World Health Organization.
8.1.5 Violations of article 12
The following are just a few examples of State actions or omissions that would
amount to a breach of the legal duties incurred under the International Covenant
on
Economic, Social and Cultural Rights with regard to the right to health:
Lawyers 737
205Ibid., p. 101, para. 43.
206Ibid., pp. 101-102, para. 44.
_ “A State which is unwilling to use the maximum of its available resources for
the
realization of the right to health”. If a country is facing resource constraints, “it
has
the burden of justifying that every effort has nevertheless been made to use all
available resources at its disposal in order to satisfy, as a matter of priority, the
obligations outlined above”;
_ Actions or omissions violating the eleven core obligations described above,
which
must be complied with in all circumstances;
_ “State actions, policies or laws that contravene the standards set out in article
12 ...
and are likely to result in bodily harm, unnecessary morbidity and preventable
morbidity. Examples include the denial of access to health facilities, goods and
services to particular individuals or groups as a result of de jure or de facto
discrimination; the deliberate withholding or misrepresentation of information
vital
to health protection or treatment” (violation of the obligation to respect);
_ The failure of a State “to take all necessary measures to safeguard persons
within
their jurisdiction from infringements of the right to health by third parties”. This
would include “the failure to regulate the activities of individuals, groups or
corporations so as to prevent them from violating the right to health of others;
the
failure to protect consumers and workers from practices detrimental to health,
e.g.
by employers and manufacturers of medicines or food; … the failure to protect
women against violence or to prosecute perpetrators” (violation of the
obligation
to protect);
_ The failure of States parties “to take all necessary steps to ensure the
realization of
the right to health. Examples include the failure to adopt or implement a national
health policy designed to ensure the right to health for everyone; insufficient
expenditure or misallocation of public resources which results in the
non-enjoyment of the right to health by individuals or groups, particularly the
vulnerable or marginalized; the failure to monitor the realization of the right to
health at the national level” (violation of the right to fulfil).207
8.1.6 Implementation at the national level
The Committee admits that “the most appropriate feasible measures to
implement the right to health will vary significantly from one State to another.
Every
State has a margin of discretion in assessing which measures are most suitable
to meet
its specific circumstances. The Covenant, however, clearly imposes a duty on
each State
to take whatever steps are necessary to ensure that everyone has access to
health
facilities, goods and services so that they can enjoy, as soon as possible, the
highest
attainable standard of physical and mental health.”208 To this end, each State
party must
adopt a national strategy and formulate policies with the right to health
indicators and
benchmarks. National health strategies and plans of actions “should respect,
inter alia,
the principles of non-discrimination and people’s participation” and “should also
be
based on the principles of accountability, transparency and independence of the
judiciary”.209 Lastly, “States should consider adopting a framework law to
207Ibid., pp. 102-103, paras. 46-52.
208Ibid., pp. 103-104, para. 53.
209Ibid., p. 104, paras. 54-55.
operationalize their right to health national strategy.” The law should create
mechanisms for monitoring the implementation of the strategy and plan of
action.210
With regard to the question of remedies and accountability, the Committee
holds that “any person or group victim of a violation of the right to health should
have
access to effective judicial or other appropriate remedies at both national and
international levels. All victims of such violations should be entitled to adequate
reparation, which may take the form of restitution, compensation, satisfaction or
guarantees of non-repetition.”211 In this connection, it encourages States parties
to
incorporate in their domestic legal order international instruments recognizing
the right
to health, since such incorporation “can significantly enhance the scope and
effectiveness of remedial measures”. “Incorporation enables courts to adjudicate
violations of the right to health, or at least its core obligations, by direct
reference to the
Covenant.”212 The Committee further states that “judges and members of the
legal
profession should be encouraged by States parties to pay greater attention to
violations
of the right to health in the exercise of their functions.”213
States parties have a legal duty to take deliberate, concrete and targeted
steps towards the full realization of the right to health. While some
obligations can be implemented progressively, others are of immediate
effect.
States parties have to respect, protect and fulfil their legal undertakings.
The obligation to fulfil also implies that States parties have a legal duty
to facilitate, provide and promote the right to health.
The States parties to the International Covenant have, at the very least,
eleven core obligations which must be complied with at all times.
All alleged victims of violations of the right to health should have access
to effective judicial or other appropriate remedies, inter alia at the
national level, and the right to adequate reparation for violations of this
right.
Judges and members of the legal professions in general should be
encouraged to pay greater attention to violations of the right to health in
the exercise of their responsibilities.
*****
Lawyers 739
210Ibid., p. 104, para. 56.
211Ibid., p. 105, para. 59.
212Ibid., p. 105, para. 60.
213Ibid., p. 105, para. 61.
Although the next two cases selected from domestic jurisdictions do not
involve the interpretation of the International Covenant on Economic, Social and
Cultural Rights, they are of considerable interest since the judges in both cases
found
ways of interpreting already existing domestic constitutional human rights
provisions in
an extensive manner, thereby paving the way for the introduction of the right to
health
in the wider context of the right to equality (Canada) and the right to life (India).
8.2 Relevant domestic case law I:
The example of Canada
The case of Eldridge v. British Columbia, which was decided by the Supreme
Court of Canada in 1997, concerned equality of rights with regard to the
provision
of medical services to persons with physical disabilities.214 The analysis
contained
in this judgment is of considerable interest and therefore warrants examination
in some
depth. It was drafted by Justice La Forest on behalf of the unanimous Supreme
Court.
The facts of the case:215 The appellants were born deaf and their preferred
means of communication was sign language. They therefore contended that the
absence of interpreters impaired their ability to communicate with their doctors
and
other health care providers, increasing the risk of misdiagnosis and ineffective
treatment. Medical care in British Columbia is delivered through two primary
mechanisms, the Hospital Insurance Act, R.S.B.C. 1979, c. 180 (later renamed
R.S.B.C.
1996, c. 204), which reimburses hospitals for the medically required services
they
provide to the public, and the Medical and Health Care Services Act, S.B.C. 1992,
c. 76
(later renamed the Medicare Protection Act, R.S.B.C. 1996, c. 286). Neither of
these
programmes paid for sign language interpretation for the deaf. One physician
testified
before the court that communication without an interpreter “was inhibiting and
frustrating” and another emphasized that adequate communication was
“particularly
critical for childbirth” to enable the patient to help with the delivery and thereby
reduce
the risk of complications.216
The appellants filed an application in the Supreme Court of British Columbia
seeking, in particular, “a declaration that the failure to provide sign language
interpreters as an insured benefit under the Medical Services Plan” violated
section
15(1) of the Canadian Charter of Rights and Freedoms,217 according to which:
“Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and,
in particular, without discrimination based on race, national or ethnic
origin, colour, religion, sex, age or mental or physical disability.”
214(1997) 3 S.C.R. Eldridge v. British Columbia (Attorney General) 624. The text used for this chapter can be
found on the following
web site: http://www.lexum.umontreal.ca/csc-scc/en/pub/1997/vol3/html/1997scr3_0624.html
215Ibid. This summary is based on the facts as related in the judgment, paras. 2-7.
217Ibid., para. 11.
The application was dismissed by the Court and, on appeal, the majority of the
British Columbia Court of Appeal held that the lack of interpreting services in
hospitals
was not discriminatory “because the Hospital Insurance Act does not provide
‘any benefit
of the law’ within the meaning of s. 15(1)of the Charter”.218
Leave to appeal was granted to the Canadian Supreme Court, which found
that neither the Medical and Health Care Services Act nor the Hospital Insurance
Act
was constitutionally suspect. The potential violation of Section 15(1)of the
Charter
rather flowed from the decision-making power delegated to the
subordinate
authority. In other words, the legislation itself did not “either expressly or by
necessary
implication” prohibit hospitals (Hospital Insurance Act) or the Medical Services
Commission (Medical and Health Care Services Act) from respectively providing
sign
language interpreters and determining that such interpretation “is a ‘medically
required’
service and hence a benefit”.219
The Court rejected the respondents’ contention that the Charter on Rights
and Freedoms was not applicable to hospitals. It found that there was “a ‘direct
and ...
precisely-defined connection’ between a specific government policy and the
hospital’s
impugned conduct”. The alleged discrimination, namely the failure to provide
sign
language interpretation, was “intimately connected to the medical service
delivery
system instituted by legislation”.220 The provision of these services was “an
expression
of government policy”, with hospitals acting “as agents for the government in
providing the specific medical services set out in the [Hospital Insurance] Act.
The
Legislature [could not therefore] evade its obligations under s. 15(1) of the
Charter to
provide those services without discrimination by appointing hospitals to carry out
that
objective.”221 With regard to the Medical Services Commission set up under the
Medical and Health Care Services Act, it was not contested that it had to conform
to the
Charter in the exercise of its power, delegated to it by the Government, to
determine
whether a service is a “benefit” pursuant to the Act and thus also a “medically
required”
service to be provided free of charge.222
The Court having concluded “that the Charter applies to the failure of
hospitals and the Medical Services Commission to provide sign language
interpreters,”
it remained to be determined whether that failure infringed the appellants’ right
to
equality under Section 15(1) of the Charter. At the outset, the Court emphasized
that,
like other Charter rights, Section 15(1) “is to be generously and purposively
interpreted” because a constitution incorporating a bill of rights calls for “a
generous
interpretation avoiding what has been called ‘the austerity of tabulated
legalism,’
suitable to give to individuals the full measure of the fundamental rights and
freedoms
referred to.”223
Lawyers 741
218Ibid., para. 13.
219Ibid., para. 29 (regarding the Medical and Health Care Services Act) and para. 34 (regarding the Hospital
Insurance Act).
220Ibid., para. 51.
221Ibid., loc. cit.
222Ibid., para. 52.
223Ibid., para. 53.
The Court further stated that Section 15(1) of the Charter serves the following
“two distinct but related purposes. First, it expresses a commitment – deeply
ingrained
in our social, political and legal culture – to the equal worth and human dignity of
all
persons. … Secondly, it instantiates a desire to rectify and prevent discrimination
against particular groups ‘suffering social, political and legal disadvantage in our
society’.”224 With regard to the special situation of persons with disabilities, the
Court
stated:
“56. It is an unfortunate truth that the history of disabled persons in
Canada is largely one of exclusion and marginalization. Persons with
disabilities have too often been excluded from the labour force, denied
access to opportunities for social integration and advancement, subjected
to invidious stereotyping and relegated to institutions ... This historical
disadvantage has to a great extent been shaped and perpetuated by the
notion that disability is an abnormality or flaw. As a result, disabled persons
have not generally been afforded the ‘equal concern, respect and
consideration’ that s. 15(1) of the Charter demands. Instead, they have been
subjected to paternalistic attitudes of pity and charity, and their entrance
into the social mainstream has been conditional upon their emulation of
able-bodied norms ... One consequence of these attitudes is the persistent
social and economic disadvantage faced by the disabled. Statistics indicate
that persons with disabilities, in comparison to non-disabled persons, have
less education, are more likely to be outside the labour force, face much
higher unemployment rates, and are concentrated at the lower end of the
pay scale when employed.”225
The Court added that “deaf persons have not escaped this general
predicament” and that “the disadvantage experienced by deaf persons derives
largely
from barriers to communication with the hearing population.”226
With regard to the question whether the appellants had been afforded “equal
benefit of the law without discrimination” in accordance with Section 15(1) of the
Charter, the Court pointed out that the claim before it was “one of ‘adverse
effects’
discrimination”, since “on its face, the medicare system in British Columbia
applies
equally to the deaf and hearing populations. It does not make an explicit
‘distinction’
based on disability by singling out deaf persons for different treatment.”227 The
Court
added that it had consistently held that “s. 15(1) of the Charter protects against
this type
of discrimination” since it was “intended to ensure a measure of substantive, and
not
merely formal equality”.228 A corollary to this principle was “that a discriminatory
purpose or intention is not a necessary condition of a s. 15(1) violation ... It is
sufficient
if the effect of the legislation is to deny someone the equal protection or benefit
of the
law.”229
224Ibid., para. 54.
225Ibid., para. 56.
226Ibid., para. 57.
227Ibid., para. 60.
228Ibid., para. 61.
229Ibid., para. 62.
In the Eldridge case, the adverse effect suffered by the deaf persons stemmed
“not from the imposition of a burden not faced by the mainstream population,
but
rather from a failure to ensure that deaf persons benefit equally from a service
offered
to everyone”.230 The Supreme Court therefore logically rejected the opinions of
the
lower courts, according to which sign language interpretation was “a discrete,
non-medical ‘ancillary’ service” that did not deny the deaf persons a benefit
available to
the hearing population. In its view it was, on the contrary, “the means by which
deaf
persons may receive the same quality of medical care as the hearing
population”.231 In
other words, whenever necessary for effective communication, “sign language
interpretation should not ... be viewed as an ‘ancillary’ service”.232
In reply to the respondents’ suggestions “that governments should be entitled
to provide benefits to the general population without ensuring that
disadvantaged
members of society have the resources to take full advantage of those benefits,”
the
Court held that “this position bespeaks a thin and impoverished vision of s.
15(1). It is
belied, more importantly, by the thrust of this Court’s equality jurisprudence.”233
In the course of its in-depth analysis of the concept of equality and
non-discrimination, the Court further stated that “the principle that
discrimination can
accrue from a failure to take positive steps to ensure that disadvantaged groups
benefit
equally from services offered to the general public is widely accepted in the
human
rights field.” As emphasized by the Court, “it is also a cornerstone of human
rights
jurisprudence ... that the duty to take positive action to ensure that members of
disadvantaged groups benefit equally from services offered to the general public
is
subject to the principle of reasonable accommodation,” which, in this context, “is
generally equivalent to the concept of ‘reasonable limits’”.234
The Court therefore concluded that “the failure of the Medical Services
Commission and hospitals to provide sign language interpretation where it is
necessary
for effective communication constitutes a prima facie violation of the s. 15(1)
rights of
deaf persons. This failure denies them the equal benefit of the law and
discriminates
against them in comparison with hearing persons.”235 This ruling did not mean,
however, “that sign language interpretation will have to be provided in every
medical
situation. The ‘effective communication’ standard is a flexible one, and will take
into
consideration such factors as the complexity and importance of the information
to be
communicated, the context in which the communications will take place and the
number of people involved ... For deaf persons with limited literacy skills,
however, it is
probably fair to surmise that sign language interpretation will be required in
most
cases.”236
Lawyers 743
230Ibid., para. 66.
232Ibid., para. 71.
233Ibid., paras. 72-73.
234Ibid., paras. 78-79.
235Ibid., para. 80.
236Ibid., para. 82.
Lastly, the Court responded in the negative to the question whether there was
any possible justification for this prima facie violation under Section 1 of the
Charter,
according to which the right and freedoms guaranteed in the Charter
can be
“subject only to such reasonable limits prescribed by law as can be
demonstrably
justified in a free and democratic society”(emphasis added). Justice La
Forest’s
summing up on this point is well worth quoting, since the thrust of his argument
is
equally relevant to other disadvantaged groups in our societies who may not
benefit
from equal medical care:
“94. In summary, I am of the view that the failure to fund sign language
interpretation is not ‘minimal impairment’ of the s. 15(1) rights of deaf
persons to equal benefit of the law without discrimination on the basis of
their physical disability. The evidence clearly demonstrates that, as a class,
deaf persons receive medical services that are inferior to those received by
the hearing population. Given the central place of good health in the
quality of life of all persons in our society, the provision of substandard
medical services to the deaf necessarily diminishes the overall quality of
their lives. The government has simply not demonstrated that this
unpropitious state of affairs must be tolerated in order to achieve the
objective of limiting health care expenditures. Stated differently, the
government has not made a ‘reasonable accommodation’ of the appellants’
disability. In the language of this Courts’ [sic] human rights jurisprudence, it
has not accommodated the appellants’ needs to the point of ‘undue
hardship’.”237
8.3 Relevant domestic case law II:
The example of India
The right to life in article 21 of the Constitution of India was given an
extensive interpretation by the Supreme Court of India in the case of Consumer
Education
& Research Centre and Others v. Union of India and Others, which concerned
occupational
health hazards and diseases affecting workmen employed in asbestos
industries.238 The
Supreme Court concluded that the “right to health, medical aid to protect the
health
and vigour to a worker while in service or post-retirement is a fundamental right
under
Article 21, read with Articles 39((e), 41, 43, 48-A and all related articles and
fundamental
human rights to make the life of the workman meaningful and purposeful with
dignity
of person”. 239
It may be noted, without going into the details of the case, that the petitioner
sought “to fill in the yearning gaps and remedial measures for the protection of
the
health of the workers engaged in mines and asbestos industries with adequate
mechanism for and diagnosis and control of the silent killer disease
‘asbestosis’.”240 The
Court analysed at length the data on the danger of exposure to asbestos and
concluded
that it results in a “long tragic chain of adverse medical, legal and societal
237Ibid., para. 94.
238(1995) 3 Supreme Court Cases 42.
239Ibid., p. 70.
240Ibid., p. 47.
consequences”, thereby issuing a reminder of “the legal and social responsibility
of the
employer or the producer not to endanger the workmen or the community or the
society”. It added that:
“He or it is not absolved of the inherent responsibility to the exposed
workmen or the society at large. They have the responsibility – legal, moral
and social to provide protective measures to the workmen and to the
public or all those who are exposed to the harmful consequences of their
products. Mere adoption of regulations for the enforcement has no real
meaning and efficacy without professional, industrial and governmental
resources and legal and moral determination to implement such
regulations.”241
The Court then examined the case, inter alia, in the light of the Preamble and
of articles 38 and 21 of the Constitution of India. According to the first
preambular
paragraph, all citizens of India shall be secured “justice, social, economic and
political”.
Article 38, which forms part of the “Directive Principles of State Policy”, concerns
the
duty of the State to secure a social order for the promotion of welfare of the
people.
Article 21 protects the right to life.
With regard to the Preamble and article 38 of the Constitution, the Court
stated, inter alia, that:
“18. ... the supreme law, envisions social justice as its arch to ensure life to
be meaningful and liveable with human dignity ... Law is the ultimate aim
of every civilised society, as a key system in a given era, to meet the needs
and demands of its time ... The Constitution commands justice, liberty,
equality and fraternity as supreme values to usher in the egalitarian social,
economic and political democracy. Social justice, equality and dignity of
person are cornerstones of social democracy ... Social justice is a dynamic
device to mitigate the sufferings of the poor, weak, dalits, tribals and
deprived sections of the society and to elevate them to the level of equality
to live a life with dignity of person. Social justice is not a simple or single
idea of a society but is an essential part of complex social change to relieve
the poor etc. from handicaps, penury to ward off distress and to make their
life liveable, for greater good of the society at large. In other words, the aim
of social justice is to attain substantial degree of social, economic and
political equality, which is the legitimate expectation. Social security, just
and humane conditions of work and leisure to workman are part of his
meaningful right to life and to achieve self-expression of his personality
and to enjoy the life with dignity; the State should provide facilities and
opportunities to enable them to reach at least minimum standard of health,
economic security and civilised living while sharing according to their
capacity, social and cultural heritage.
Lawyers 745
241Ibid., pp. 66-67.
19. In a developing country like ours steeped with unbridgeable and
ever-widening gaps of inequality in status and of opportunity, law is a
catalyst, rubicon to the poor etc. to reach the ladder of social justice ... What is
due cannot be ascertained by absolute standard which keeps changing
depending upon the time, place and circumstance. The constitutional
concern of social justice as an elastic continuous process is to accord justice
to all sections of the society by providing facilities and opportunities to
remove handicaps and disabilities with which the poor etc. are languishing
and to secure dignity of their person. The Constitution, therefore,
mandates the State to accord justice to all members of the society in all
facets of human activity. The concept of social justice embeds equality to
flavour and enliven practical content of ‘life’. Social justice and equality are
complementary to each other so that both should maintain their vitality.
Rule of law, therefore, is a potent instrument of social justice to bring
about equality in results.” 242
The Court then stated that, through article 1 of the Universal Declaration of
Human Rights, the Charter of the United Nations “reinforces the faith in
fundamental
human rights and in the dignity and worth of human person envisaged in the
Directive
Principles of State Policy as part of the Constitution. The jurisprudence of
personhood
or philosophy of the right to life envisaged under Article 21, enlarges its sweep to
encompass human personality in its full blossom with invigorated health which is
a
wealth to the workman to earn his livelihood, to sustain the dignity of person and
to live
a life with dignity and equality.”243 The Court added that:
“22. The expression ‘life’ assured in Article 21 of the Constitution does
not connote mere animal existence or continued drudgery through life. It
has a much wider meaning which includes right to livelihood, better
standard of living, hygienic conditions in the workplace and leisure ... If the
right to livelihood is not treated as a part of the constitutional right to life,
the easiest way of depriving a person of his right to life would be to deprive
him of his means of livelihood to the point of abrogation. Such deprivation
would not only denude the life of its effective content and meaningfulness
but it would make life impossible to live, leave aside what makes life
liveable. The right to life with human dignity encompasses within its fold,
some of the finer facets of human civilisation which makes life worth
living. The expanded connotation of life would mean the tradition and
cultural heritage of the persons concerned.”244
With regard to the right to health and the right to life of the worker, the Court
specified that:
“24. The right to health to a worker is an integral facet of meaningful right
to life, to have not only a meaningful existence but also robust health and
vigour without which worker would lead life of misery. Lack of health
denudes him of his livelihood. Compelling economic necessity to work in
an industry exposed to health hazards due to indigence to bread-winning
for himself and his dependants, should not be at the cost of the health and
242Ibid., pp. 67-68.
243Ibid., p. 68.
244Ibid., pp. 68-69.
vigour of the workman. Facilities and opportunities, as enjoined in Article
38, should be provided to protect the health of the workman. Provision for
medical test and treatment invigorates the health of the worker for higher
production or efficient service. Continued treatment, while in service or
after retirement is amoral, legal and constitutional concomitant duty of the
employer and the State. Therefore, it must be held that the right to
health and medical care is a fundamental right under Article 21 read
in conjunction with Articles 39(e), 41 and 43 of the Constitution and
make the life of the workman meaningful and purposeful with
dignity of person. Right to life includes protection of the health and
strength of the worker and is a minimum requirement to enable a
person to live with human dignity.”245
It therefore also followed that, since the health and strength of the worker are
an integral facet of the right to life, “the State, be it Union or State Government
or an
industry, public or private, is enjoined to take all such actions which will promote
health, strength and vigour of the workman during the period of employment
and
leisure and health even after retirement as basic essentials to live the life with
health and
happiness.”246
Among the various directives issued by the Court was the order to “all the
factories whether covered by the Employees’ State Insurance Act or Workmen’s
Compensation Act or otherwise ... to compulsorily insure health coverage to
every
worker”.247
The cases considered by the Supreme Courts of Canada and India show
that, although the right to health may not as such be included in domestic
law, the domestic judge is not necessarily deprived of legal tools to protect
the right to health of vulnerable groups:
_ In Canada this was done by reference to the right to equal access to
medical services, with the right to equality being given a dynamic,
purposeful interpretation;
_ In India it was done by an extensive interpretation of the right to life
as understood in the light of other constitutional provisions concerning,
inter alia, social justice.
Lawyers 747
245Ibid., p. 70; emphasis added. Article 41 of the Constitution concerns the right to work, to education and
to public assistance in
certain cases; article 43 directs that the State shall “endeavour to secure to all workers, by suitable
legislation or economic organisation
or any other way to ensure decent standard of life and full enjoyment of leisure and social and cultural
opportunities to the workers”,
p. 68.
246Ibid., p. 70.
247Ibid., p. 73.

and Lawyers in the Protection of
Economic, Social and Cultural
Rights: Lessons Learned
As this chapter shows, the legal professions have an essential role to play in
promoting the protection of economic, social and cultural rights, a role that is
particularly important for the most vulnerable groups in society. Although there
are still
countries in which the judiciary is reluctant to adjudicate alleged violations of
these
rights on the grounds that such issues fall within the power of the executive,
such a
reduced role for the judiciary in respect of societal problems appears not only
increasingly anachronistic but particularly difficult to sustain in law. Without
concluding that each and every issue relating to the exercise of economic, social
and
cultural rights lends itself to judicial determination, this chapter makes clear that
many
do and that unless there are efficient legal remedies at the disposal of, in
particular, the
poor and vulnerable, these persons or groups may have no option, in their
despair and
deprivation, but to take the law into their own hands in order to protect
themselves, as
in the South African case.
The breadth and complexity of the subject of economic, social and cultural
rights has by necessity limited the scope of this chapter, which has highlighted
only a
few important aspects of such rights. It has shown, in particular, that the view
has been
held ever since the drafting of the Charter of the United Nations that civil and
political
rights, on the one hand, and economic, social and cultural rights, on the other,
are
intrinsically interdependent for their true fulfilment. This integrated approach has
also
been emphasized by the Committee on Economic, Social and Cultural Rights and
upheld in the domestic jurisprudence analysed in this chapter.
Through its General Comments, the Committee on Economic, Social and
Cultural Rights has also provided detailed interpretations of the legal obligations
of
States parties in respect of several of the rights contained in the International
Covenant
on Economic, Social and Cultural Rights. This increased legal precision of the
normative content of such rights provides a welcome and helpful tool not only for
Governments but also for domestic judges, whether they are interpreting and
applying
the Covenant itself or other forms of legislation.
However, this improved definition of governmental legal obligations to
protect economic, social and cultural rights must necessarily go hand in hand
with a
firm determination to uphold civil and political rights, because without effective
protection of these rights based on the rule of law, economic, social and cultural
rights
are likely to remain empty promises.
.........Chapter 15
PROTECTION AND REDRESS
FOR VICTIMS OF CRIME
AND HUMAN RIGHTS
VIOLATIONS ........................
Learning Objectives
_ To sensitize the participants to the effects that crime and human rights
violations may
have on the victims
_ To familiarize the participants with existing international legal rules
governing
protection and redress for victims of crime and human rights violations
_ To identify steps that States must take in order to provide redress and
protection for
victims of crime and human rights violations
_To increase the participants’ awareness of their potential as judges,
prosecutors and
lawyers in protecting victims of crime and human rights violations
Questions
_ What are the needs, problems and interests, in your view, of victims of
ordinary
crime?
_ What types of legal protection and/or redress exist in your country for
victims of
ordinary crime? Give examples, such as cases of persons abused or
maltreated by
common criminals?
_ Do victims of crime face any special problems in the country in which you
are
exercising your professional responsibilities?
_ If so, what are they and what is being done to remedy the situation?
_ Are there any particularly vulnerable groups of victims in your country,
such as
abused women and children?
_ If so, what is done to protect them if they denounce the perpetrator of
the abuse?
_ What measures, if any, are taken in the country in which you work to
help protect
other witnesses, such as informers, whose lives may be in danger
following their
testimony?
Lawyers 749
Questions (cont.d)
_ What types of legal protection and/or redress exist in your country for,
among others,
the following categories of people in the event of human rights violations?
– detainees who consider that they are arbitrarily detained;
– detainees who are subjected to ill-treatment, and, in particular, women
and
children;
– persons in incommunicado detention;
– victims or their dependants in cases of abduction and extrajudicial
killings;
– offenders who have not enjoyed basic due process guarantees during
their trial;
– women and children who are subjected to State, community or domestic
abuse, or
threats of such abuse;
– persons subjected to gender, racial or other kinds of discrimination;
_ Do victims of human rights violations face any special problems in the
country in
which you are exercising your professional responsibilities?
_ If so, what are they and what is being done to remedy the situation?
_ Are there any particularly vulnerable groups in this regard in your
country?
_ If so, who are they, what are their problems, and what is being done to
help them?
_ How do you perceive your role as judges, prosecutors and/or lawyers in
ensuring
effective protection and redress for victims of human rights violations?
_ What are your views on amnesty or impunity laws, which imply that
perpetrators of
crimes and human rights violations will not be prosecuted for their
unlawful acts?
Women, 1979
Treatment of Punishment, 1984
Chapter 15 • Protection and Redress for Victims of Crime and Human Rights Violations
_United Nations Convention against Transnational Organized Crime,
2000, and Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the
Convention
*****
_Universal Declaration of Human Rights, 1948
_Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power, 1985
_ Vienna Declaration and Programme of Action, 1993
_ European Convention on the Compensation of Victims of Violent
Crimes, 1983
*****
_Committee of Ministers Recommendation No. R (85) 11 to the
Members States of the Council of Europe on the Position of the Victim
in the Framework of Criminal Law and Procedure, 1985
1. Introduction
The present chapter will deal with two basically distinct, but also clearly
related issues, namely protection and redress for victims of crime, on the one
hand, and
protection and redress for victims of human rights violations, on the other.
Generally
speaking, conventional crimes are committed by people in their private capacity
against
national penal law, and Governments are not, in principle, responsible for the
illegal
conduct involved. Acts constituting human rights violations are committed by
organs
or persons in the name of or on behalf of the State, for instance by the
Government,
parliament, the courts, prosecutors, police officers and other law enforcement
officials.
As will be seen below, however, Governments may also, in specific cases, be
responsible for the acts of private individuals. These acts may constitute
violations of
the fundamental rights and freedoms of persons under international human
rights law
and/or under domestic constitutional or ordinary legislation. Admittedly,
however, this
Lawyers 751
distinction between victims of crime and human rights violations is not always
clear-cut, but it serves as a convenient point of departure for the presentation of
the
legal problems dealt with in this chapter.
That being said, it is important to bear in mind throughout this chapter that to
some extent victims of crime and human rights violations have many interests
and
needs in common, such as a possible need for medical attention, including help
for
emotional problems, compensation for financial loss and various forms of special
protection and/or assistance. The principles dealt with below in relation to
victims of
crime and human rights violations can thus be viewed as mutually reinforcing
whenever
an assessment must be made of the victim’s needs and the adequate response
by society
to those needs.
It should further be noted that it is impossible, within such a limited
framework, to provide a comprehensive account and analysis of the needs of
victims of
crime and human rights violations, and the response to the victims, including the
establishment of victims’ programmes. As increased attention has been focused
on
victims’ rights in recent years, much research has been carried out that can
provide help
and stimulation to legal practitioners and to social workers and other
professional
groups who may be called upon to assist victims of crime and human rights
violations in
recovering from the negative effects of unlawful acts. For suggested reading on
this
issue, see Handout No. 1.
*****
The first part of this chapter will deal with protection and redress for victims
of crime. As will be seen, however, international law does not regulate in detail
the
question of protection and redress for victims of ordinary crime, although
attempts
have been made to increase the focus on the plight of victims so as to encourage
Governments to provide them with adequate help and support. The chapter will
review
the limited rules that do exist in the hope that it may inspire further discussion of
the
problems facing victims of crime, the main purpose being to increase
participants’
awareness of the importance of paying due attention to their feelings, needs and
interests at all stages of the judicial process.
It should furthermore be pointed out that conventional crimes cover not only
more traditional crimes such as ill-treatment, murder, trafficking, sexual and
other
abuses, theft, burglary and so forth, but also various kinds of organized crime
and
corruption, as well as, for instance, the relatively new category of cybercrimes.1
On the
other hand, it will not be possible to deal in detail with the various interests that
different categories of victims have or may have, and the chapter will therefore
deal
only, in relatively general terms, with the problems of victims of crime.
1For an international treaty on this issue, see Convention on Cybercrime (ETS No. 185) signed in
Budapest on 23 November
2001. The Convention is open for signature by the member States of the Council of Europe and non-member
States that participated
in its elaboration, and is open for accession by other non-member States. It requires 5 ratifications including
at least 3 member States
of the Council of Europe in order to enter into force. As of 23 June 2002, only Albania had ratified the
Convention; see
http://conventions.coe.int
The second part of this chapter will consider the international rules governing
the legal duties of States to provide effective protection and redress to victims of
human rights violations. In this regard, some relatively clear rules exist in
international
human rights law, which have been further clarified in the substantial case law of
the
international monitoring bodies. The chapter will analyse, in particular, States’
general
legal duty to ensure the effective protection of human rights, and their specific
duties to
prevent violations of human rights, to provide effective domestic remedies
for
alleged violations of a person’s human rights, and to investigate, prosecute
and
punish such violations and provide redress to the victim concerned. The
chapter will
also discuss the question of impunity for human rights violations. Lastly, it will
make
recommendations regarding the role of the legal professions in providing
protection
and redress for victims of crime and human rights violations, and close with
some
concluding remarks.
2. Protection and Redress for
Victims of Crime
2.1.1 The universal level
While there is no universal convention dealing with the rights of victims of
conventional crimes, the United Nations General Assembly adopted, in 1985, the
Declaration of Basic Principles of Justice for Victims of Crime and Abuse
of
Power, the text of which had been approved by consensus by the Seventh
United
Nations Congress on the Prevention of Crime and the Treatment of Offenders.2
To
promote implementation, a Guide for Practitioners Regarding the
Implementation of the Declaration was prepared,3 and the United Nations
Economic and Social Council, by resolution 1990/22 of 24 May 1990, invited the
Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders to give wide distribution to the Guide.4
The Declaration defines the notion of victim of crime and abuse of power and
specifies victims’ rights of access to justice and fair treatment, restitution,
compensation and assistance. Insofar as it deals with victims of abuse of power,
it will
be considered in section 3 infra.
Lawyers 753
2See UN doc. E/CN.15/1997/16, Use and application of the Declaration of Basic Principles of Justice for
Victims of Crime and
Abuse of Power, note by the Secretary-General, para. 1.
3UN doc. A/CONF.144/20, Annex, Guide for Practitioners Regarding the Implementation of the Declaration of
Basic
Principles of Justice for Victims of Crime and Abuse of Power (hereinafter referred to as UN doc.
A/CONF.144/20, Annex, Guide
for Practitioners).
4UN doc. A/CONF.144/20.
As pointed out in the Guide for Practitioners, the basic principles contained in
the Declaration “apply, without discrimination, to all countries, at every stage of
development and in every system, as well as to all victims”.5 They furthermore
“place
corresponding responsibilities on central and local government, on those
charged with
the administration of the criminal justice system and other agencies that come
into
contact with the victim, and on individual practitioners”.6 Paragraph 3 of the
Declaration states expressly that:
“The provisions contained herein shall be applicable to all, without
distinction of any kind, such as race, colour, sex, age, language, religion,
nationality, political or other opinion, cultural beliefs or practices,
property, birth or family status, ethnic or social origin, and disability.”
Lastly, it is of interest to note that, although it was not in force on 24 June
2002, the United Nations Convention against Transnational Organized
Crime,
which was adopted by the General Assembly on 15 November 2000, contains
specific
provisions in article 25 concerning “Assistance to and protection of victims”.
Article 6
of the Protocol to Prevent, Suppress and Punish Trafficking in Persons,
Especially Women and Children, supplementing that Convention, contains
even
more detailed rules regarding “Assistance to and protection of victims of
trafficking in
persons”. The text of these provisions may be found in Handout No. 2.
However, as
the Convention on Transnational Organized Crime had, as of 24 June 2002, only
15 out
of the 40 ratifications required before it can enter into force, it will not be further
dealt
with in this chapter. By the same date, the Protocol had been ratified by 12
States.
2.1.2 The regional level
At the regional level, the member States of the Council of Europe concluded,
in 1983, the European Convention on the Compensation of Victims of
Violent
Crimes, which entered into force on 1 February 1988. As of 23 June 2002, it had
secured a total of fifteen ratifications and accessions.7 This treaty was drafted in
response to an increased awareness that assistance to victims “must be a
constant
concern of crime policy, on a par with the penal treatment of offenders. Such
assistance
includes measures designed to alleviate psychological distress as well as to
make
reparation for the victim’s physical injuries.”8 It was also considered necessary to
compensate the victim in order “to quell the social conflict caused by the offence
and
make it easier to apply rational, effective crime policy”.9
One of the concerns underlying the Convention was to provide a
compensation scheme that would allow States to step in and compensate the
victim or
his or her dependants, who rarely obtained any compensation in practice
because of the
5UN doc. A/CONF.144/20, Annex, Guide for Practitioners, p. 3, para. 1.
6Ibid., p. 3, para. 2.
7See ETS No. 116, at Treaty Office on http://conventions.coe.int
8See Explanatory Report on the European Convention on the Compensation of Victims of Violent Crimes,
http://conventions.coe.int/treaty/en/Reports/Html/116.htm (Council of Europe web site), p. 1, para. 1
(hereinafter referred to as
Explanatory Report). This Explanatory Report does not, however, “constitute an instrument providing an
authoritative interpretation
of the Convention although it might be of such a nature to facilitate the application of the provisions
contained therein” p. 1, para II.
9Ibid., p. 3, para. 7.
offender’s non-apprehension, disappearance or lack of means.10 Another concern
was
to give increased protection to foreigners moving between the member States of
the
Council of Europe.11
The European Committee on Crime Problems of the Council of Europe is to
be “kept informed regarding the application of the Convention” and the States
parties
are to transmit to the Secretary-General of the Council of Europe “any relevant
information about its legislative or regulatory provisions concerning the matters
covered by the Convention” (art. 13).
For more details of the principles laid down by this Convention, which are
limited to compensation, see infra, subsections 2.2 and 2.4.3.
By virtue of Recommendation No. R (85) 11 on the Position of the Victim
in the Framework of Criminal Law and Procedure, the Committee of
Ministers of
the Council of Europe expanded on the need to protect victims of crime who may
suffer physical, psychological, material and social harm and whose needs
“should be
taken into account to a greater degree, throughout all stages of the criminal
justice
process”.12 The preamble to the Recommendation states that the operation of
the
criminal justice system “has sometimes tended to add to rather than to diminish
the
problems of the victim,” that “it must be a fundamental function of criminal
justice to
meet the needs and to safeguard the interests of the victim” and that “it is also
important to enhance the confidence of the victim in criminal justice and to
encourage
his co-operation, especially in his capacity as a witness.”13 Moreover, measures
to help
the victims “need not necessarily conflict with other objectives of criminal law
and
procedure, such as the reinforcement of social norms and the rehabilitation of
offenders, but may in fact assist in their achievement and in an eventual
reconciliation
between the victim and the offender”.14 The member States of the Council of
Europe
were therefore asked to “review their legislation and practice” in accordance
with the
guidelines contained in the Recommendation and which relate to:
_ the police level
_ prosecution
_ questioning of the victim
_ court proceedings
_ the enforcement stage
_ the protection of privacy
_ special protection of the victim
_ conflict resolution schemes
_ research
Lawyers 755
10Ibid., p. 1, para. 1.
11Ibid., p. 2, para. 3.
12Fifth and seventh preambular paragraphs.
13Second, third and fourth preambular paragraphs.
14Sixth preambular paragraph.
The recommendations relating to the first seven of these stages of the
administration of criminal justice will be dealt with in the appropriate context
below.
On the other hand, this chapter will not discuss conflict resolution and the
promotion
of further research in that area. It should be noted, however, that mediation
between
offender and victim may, especially in the case of relatively minor crimes, be an
interesting way of pursuing justice and dealing with anti-social behaviour.
However, the
advantages and disadvantages of resorting to conflict resolution schemes in the
field of
criminal justice is a multi-dimensional discussion that lies beyond the scope of
this
chapter.
2.2 The notion of victim
According to paragraph 1 of the Declaration of Basic Principles of Justice for
Victims of Crime and Abuse of Power, the term “victims”
“means persons who, individually or collectively, have suffered harm,
including physical or mental injury, emotional suffering, economic loss or
substantial impairment of their fundamental rights, through acts or
omissions that are in violation of criminal laws operative within Member
States, including those laws proscribing criminal abuse of power”.
This definition covers many categories of harm sustained by people as a
consequence of criminal conduct, ranging from physical and psychological injury
to
financial or other forms of damage to their rights, irrespective of whether the
injury or
damage concerned was the result of positive conduct or a failure to act.
Quite importantly, according to paragraph 2 of the Declaration a person may
be considered a victim “regardless of whether the perpetrator is identified,
apprehended, prosecuted or convicted and regardless of the familial relationship
between the perpetrator and the victim”. According to the same article:
“The term ‘victim’ also includes, where appropriate, the immediate family
or dependants of the direct victims and persons who have suffered harm in
intervening to assist victims in distress or to prevent victimization.”
Lastly, as pointed out in subsection 2.1.1 above, the provisions of the
Declaration, in full consistency with the principle of equality and the prohibition
of
discrimination under international human rights law dealt with in Chapter 13 of
this
Manual, are, according to paragraph 3, applicable to all, without distinction of
any kind
on the grounds enumerated in the paragraph or on other grounds.
*****
The European Convention on the Compensation of Victims of Violent
Crimes contains no explicit definition of the notion of “victim” and, as made clear
by
the title, its framework is somewhat limited in that it obliges the State to provide
compensation to victims of crime only when “compensation is not fully available
from
other sources”. Moreover, only the following two categories of victim may qualify
for
compensation:
_ “those who have sustained serious bodily injury or impairment of health
directly
attributable to an intentional crime of violence”, and
_ “the dependents of persons who have died as a result of such crime” – article
2(1)(a)
and (b).
However, a victim for the purposes of the Convention may be a person who
has been injured or killed when trying to prevent an offence or when “helping
the
police to prevent the offence, apprehend the culprit or help the victim”.15
As made clear by article 2, the Convention does not provide a right to
compensation in respect of criminal conduct in general but only in respect of
violent
crime, nor does it foresee other kinds of help and assistance for victimized
persons.
This somewhat restrictive framework seems to limit the impact that the
Convention
might have in terms of providing constructive support to victims of crime,
support that
should be available throughout the criminal justice system. However, the 1985
Recommendation of the Committee of Ministers on the Position of the Victim in
the
Framework of Criminal Law and Procedure, while not legally binding, adopts a
more
holistic approach to the problems faced by victims of crime, a victim-oriented
approach
that covers all stages of criminal proceedings, from the police level to the
enforcement
stage, and takes into account the possible need for special protection for the
victim.
*****
It is important for members of the legal professions to be aware that the
impact on victims of crime is not necessarily limited to physical injury and loss of
property, but may also include “loss of time in obtaining financial redress and
replacing
damaged goods”.16 Moreover, at the psychological level, victims may be afflicted
by a
sense of disbelief, a reaction that may be followed by a state of shock,
disorientation or
even fear and anger.17 Indeed, when seeking a reason for the crime, victims may
experience guilt themselves for what occurred.18 Although people react
differently to
crime and do not all suffer serious or long-lasting effects, emotional reactions
can affect
everybody and a failure to respond or an inadequate response to such emotions
on the
part of the responsible authorities may exacerbate feelings of anger and fear.19
As noted
in the Guide for Practitioners,
“A peaceful and orderly resolution of conflicts depends upon showing
compassion and respect for the dignity of victims by meeting their
expectations.”20
Lawyers 757
15Explanatory Report, p. 6, para. 20.
16UN doc. A/ CONF.144/20, annex, Guide for Practitioners, p. 3, para. 5.
17Ibid., p. 3, para. 6.
18Ibid., loc. cit.
19Ibid., p. 4, paras. 7-8 and 11.
20Ibid., p. 4, para. 9.
2.3 Treatment of victims in the administration

of justice
Attempts to date at the international level to improve the position of victims
in the administration of justice are an admission of the fact that national justice
systems
have often focused on the offender and his or her relationship with the State, to
the
exclusion of the rights, needs and interests of victims. Although international law
is still
rudimentary in this field, some useful guidelines have been developed and will
be dealt
with below in the logical order of their relevance to the practical workings of the
administration of justice.
It may be said at the outset that the primary concern should, in general, be to
ensure that persons whose rights have been violated in one way or another feel
that
justice has been done. It is therefore important always to bear in mind that, to
avoid
further disillusionment on the part of victims of crime, everybody working in the
criminal justice system must show respect and understanding for their concerns,
needs
and interests. Thoughtlessness and lack of consideration might otherwise
needlessly
add to victims’ pain and disappointment. 21
To ensure justice for persons who suffer victimization, it is also vital to
establish and strengthen judicial and administrative mechanisms. As stated in
paragraph
5 of the Declaration of Basic Principles, victims of crime should be enabled “to
obtain
redress through formal or informal procedures that are expeditious, fair,
inexpensive
and accessible”. According to the same provision, victims “should be informed of
their
rights in seeking redress through such mechanisms”. As will be seen below, this
duty to
inform constitutes an essential part of the responsibilities of various law
enforcement
authorities vis-à-vis victims of crime.
2.3.1 Treatment of victims by the police
After a criminal offence has been committed, the victim’s first contact with
the justice system is usually through the police, and this contact may continue
for a
considerable part of the judicial process. The response of the police during this
first
encounter may have a decisive impact on the victim’s attitude to the criminal
justice
system as such. Their role is therefore crucial at this early stage of the criminal
process.22
The Declaration on Basic Principles provides little guidance on police
conduct as such, although paragraph 4 makes the general statement that
victims
“should be treated with compassion and respect for their dignity”, a rule that is
equally
valid for the police. The only explicit reference to the police is contained in
paragraph
16, according to which police personnel constitute one of the groups that should
receive training to sensitize them to the needs of victims and guidelines to
ensure
proper and prompt aid.
21Ibid., see p. 10, para. 31.
22Ibid., p. 10, para. 36.
However, according to paragraph 6, which should be interpreted as applying
also to police investigations of crime, “the responsiveness of judicial and
administrative
processes to the needs of victims should be facilitated by”, inter alia,
_ “Informing victims of their role and the scope, timing and progress of the
proceedings and of the disposition of their cases, especially where serious crimes
are
involved and where they have requested such information” – paragraph 6(a);
_ “Allowing the views and concerns of victims to be presented and considered at
appropriate stages of the proceedings where their personal interests are
affected,
without prejudice to the accused and consistent with the relevant national
criminal
justice system” – paragraph 6(b);
_ “Providing proper assistance to victims throughout the legal process” –
paragraph
6(c).
*****
According to the Council of Europe Recommendation on the Position of the
Victim:
_ “Police officers should be trained to deal with victims in a sympathetic,
constructive
and reassuring manner” – Part IA, paragraph 1;
_ “The police should inform the victim about the possibilities of obtaining
assistance,
practical and legal advice, compensation from the offender and state
compensation” – Part IA, paragraph 2;
_ “The victim should be able to obtain information on the outcome of the police
investigation” – Part IA, paragraph 3;
_ “In any report to the prosecuting authorities, the police should give as clear
and
complete a statement as possible of the injuries and losses suffered by the
victim” –
Part IA, paragraph 4.
*****
It follows from these provisions that a first important aspect of the role of the
police is to show due courtesy and respect. They must also ensure that the
victim feels
“that the offence is being considered individually and properly”. Consequently,
to
prevent a sense of frustration among victims or increased anger, fear and
insecurity,
police officers should avoid conveying the impression that the crime is trivial or
otherwise not being taken seriously.23 Respect, compassion and understanding
for
victims should thus be the hallmark of police conduct at this stage, including a
willingness to speak to the victims in language that they understand, avoiding
professional jargon to the extent possible.
Second, the police are particularly well placed to inform victims of crime of
ways in which they can obtain assistance, compensation and other kinds of help.
For
instance, they can refer victims to specialized assistance agencies and should
preferably
provide the information in both oral and written form, since the victims may at
this
Lawyers 759
23Ibid., p. 11, para. 38.
stage be too upset to take on board all oral information given.24 In this
connection, the
police may also wish to reassure victims by emphasizing that crime is not
tolerated25
and that they will do their best to investigate the victim’s case.
A third important role for the police is as transmitter to victims of various
kinds of essential information regarding the judicial process. The continuous
sharing of
information that is of relevance to victims and their needs and interests is of
fundamental importance in ensuring that they feel involved in the criminal
proceedings,
an aspect that has long been neglected in the criminal justice system. In
particular,
victims need to be adequately informed about the role they might play in the
proceedings.26 Again, all such information should preferably be conveyed to the
victim
in both oral and written form. To this end, well-written guides could prove
helpful.27
On the question of information, it is important to reiterate that, according to
the Council of Europe Recommendation on the Position of the Victim, the victim
should be able to obtain information on the outcome of the police investigation
and,
lastly, that “in any report to the prosecuting authorities, the police should give as
clear
and complete a statement as possible of the injuries and losses suffered by the
victim”.
Both points are essential in reassuring the victim that his or her problems and
needs are
being given due consideration by the competent authorities. A failure to inform
the
victim about the result of the police investigation may undermine his or her
confidence
in the judicial criminal system and its capacity to deal with crime and the effects
of
crime. Furthermore, unless the prosecuting authorities are in possession of a
detailed
and adequate account of the effects of the crime on the victim or victims
concerned,
they may not be able adequately to assess the seriousness of the unlawful act,
which,
again, may cause the victim to feel neglected and lose confidence in the judicial
process.
The police must at all times show respect for, and courtesy towards,
victims of crime.
The police should provide victims of crime with information about
available help, assistance and compensation for injuries and losses they
have sustained as a result of the crime.
The police should share other relevant information with victims of crime,
including information on the role that victims may play in the criminal
proceedings.
The police should inform victims of the outcome of their investigation and
provide the prosecution with detailed information as to the effect or
effects
that the relevant crime had and continues to have on the victims
concerned.
By treating victims with respect and understanding, and by sharing
relevant information with them, the police help to promote confidence in
the criminal justice system.
24Ibid., p. 11, paras. 39-41.
27Ibid., loc. cit.
2.3.2 Treatment of victims by the prosecution
As in the case of the police, the Declaration of Basic Principles does not deal
expressis verbis with the manner in which the prosecuting authorities should
deal with
victims of crime, but the same general principles are valid. Thus, the prosecution
must
also treat victims with “compassion and respect for their dignity” and keep them
informed about their role, the scope, timing and progress of the proceedings and
the
outcome of the investigations. Morever, for the same reasons as were stated
above, it
must allow victims to convey their views and concerns.
*****
According to the Council of Europe Recommendation on the Position of
Victims:
_ “A discretionary decision whether to prosecute the offender should not be
taken
without due consideration of the question of compensation of the victim,
including
any serious effort made to that end by the offender” – Part. IB, paragraph 5;
_ “The victim should be informed of the final decision concerning prosecution,
unless he indicates that he does not want this information” – Part. IB, paragraph
6;
_ “The victim should have the right to ask for a review by a competent authority
of a
decision not to prosecute, or the right to institute private proceedings” – Part IB,
paragraph. 7.
*****
As noted in the Guide for Practitioners, the criminal justice system differs
from one country to another, and so does the role played by the victim. For
instance, in
some countries the victim can only serve as a prosecution witness, while in
others he or
she can also prosecute.28 However, irrespective of the judicial system in force,
the
question of information for victims – as shown by both the Declaration of
Principles
and the Recommendation on the Position of Victims – remains of fundamental
importance throughout the proceedings, also when the case is in the hands of
the
prosecution. In addition to any information of general value that the prosecutor’s
office
may distribute to victims, specific material should also be provided about a
victim’s
case. To enable victims to play a constructive role in the investigation, and to
prevent
disillusionment with the criminal justice system, the information imparted by the
prosecuting authorities must be relevant and adequate.29
It is particularly important “that victims should believe that their case has been
fully and carefully considered, and that they have confidence in the decision that
is
made to prosecute or not”.30 As recognized at the European level, it is also
important
for victims who are dissatisfied with the decision not to prosecute to have a right
of
review or the right to institute private proceedings. With regard to the right of
review,
different mechanisms have been adopted in practice such as review by superior
Lawyers 761
28Ibid., p. 14, para. 51.
30Ibid., p. 15, para. 54.
prosecutors, by the courts or even by an ombudsman. Another possibility is that
of
private prosecution.31
The prosecuting authorities should at all times show respect for, and
courtesy towards, victims of crime.
The prosecuting authorities should keep victims informed about their role
in the investigations and about the scope, timing and progress of the
proceedings.
The prosecuting authorities should inform the victim of the outcome of the
investigation unless, at least at the European level, the victim has
indicated that he or she does not wish to have this information.
Where the competent authority decides not to prosecute, the victim
should
be entitled to have the decision reviewed or should be able to bring a
private prosecution.
2.3.3 Questioning of victims during criminal procedures
The duty to treat victims of crime “with compassion and respect for their
dignity” (Principle 4 of the Declaration of Basic Principles) is particularly relevant
in the
context of the questioning of victims, whether the questioning is carried out by
the
police, a prosecutor or a judge in court. To give evidence in court may be a
particularly
intimidating experience, especially if the victim has had no earlier contact with
the
criminal justice system.32 Specific assistance for victims may be helpful “to
ensure that
the victim feels that he or she has been able to participate properly and that the
court
has the best evidence before it”.33 Special assistance to victims who have to
testify in
court may be of particular value to victims of rape and child abuse. The use of
trained
counsellors, video-taped evidence or direct video links may be helpful in this
respect, as
may legal aid to victims so that they can have there own legal adviser. This is
particularly
important, inter alia, when the victim’s civil claim is heard at the same time as
the
criminal prosecution.34
*****
Victims, the victim should, at all stages of the procedure, “be questioned in a
manner
which gives due consideration to his personal situation, his rights and his dignity.
Whenever possible and appropriate, children and the mentally ill or handicapped
should be questioned in the presence of their parents or guardians or other
persons
qualified to assist them” (Part IC, para. 8).
*****
31Ibid., loc. cit.
33Ibid., loc. cit.
34Ibid.
Apart from the abovementioned categories of crime victim, persons who may
need particular help and support in connection with questioning include victims
of
trafficking, of racially motivated criminal acts or of terrorist acts. Whenever a
victim is,
for instance, a foreign national and does not speak the local language, particular
attention has to be paid to ensuring that he or she is treated with dignity and
that all
relevant information is conveyed in a language that is understood. Special
assistance
may also be required to support and reassure crime victims belonging to
minority
groups.
Questioning by the police, a prosecutor or a judge of victims of crime must
be carried out with compassion and respect for their dignity. Special
assistance to victims testifying in court may be necessary to reassure the
victims and ensure that they play a proper role in the proceedings.
Special assistance may be needed, inter alia, for victims of sex crimes,
child abuse, trafficking or terrorist acts and for victims of foreign
nationality, members of minority groups and persons with disabilities.
2.3.4 Victims and criminal court proceedings
Paragraph 6 of the Declaration of Principles also covers court proceedings,
which means that victims should, for instance, be informed about the time and
scope of
the proceedings and the role they are expected to play. As noted in the previous
subsection, it may be helpful to provide special assistance to victims at this
stage too.
Such assistance is envisaged in paragraph 6(c) of the Declaration. It is also
important
for victims that unnecessary delays in the disposition of the case be avoided
(paragraph
6(e)).
*****
Victims, the victim should be informed of
_ “the date and place of a hearing concerning an offence which caused him
suffering ;
_ his opportunities of obtaining restitution and compensation within the criminal
justice process, legal assistance and advice ;
_ how he can find out the outcome of the case” (Part ID, para. 9).
“It should be possible for a criminal court to order compensation by the
offender to the victim” and “legislation should provide that compensation may
either
be a penal sanction, or a substitute for a penal sanction or be awarded in
addition to a
penal sanction” (Part ID, paras. 10-11).
*****
Lawyers 763
To inspire confidence in the justice system, the presiding judge should make
sure that victims are given due notice of the trial proceedings and that their
views are
adequately conveyed to the court. Victims should be duly notified of any delay in
or
adjournment of the proceedings and should be informed about how to obtain the
judgment in the case. It is essential that the presiding judge ensures that victims
have
been adequately informed about any rights they may have to compensation and
restitution so that they may, for instance, formulate their claims properly.
Victims of crime should be informed of the date and place of the court
proceedings concerning the crime whose effects they are suffering and
should also be informed of any delay or adjournment.
Victims of crime should be duly informed of any rights they have to
obtain restitution or compensation for the crime concerned.
Victims of crime should be informed of how to obtain a copy of the
judgment relating to the crime.
2.3.5 Victims’ right to protection of their private life and their safety
According to paragraph 6(d) of the Declaration of Basic Principles, the
responsiveness of judicial and administrative processes to the needs of victims
should
be facilitated by:
“Taking measures to minimize inconvenience to victims, protect their
privacy, when necessary, and ensure their safety, as well as that of their
families and witnesses on their behalf, from intimidation and retaliation”.
*****
On this issue the Council of Europe Recommendation on the Position of
Victims states that:
“Information and public relations policies in connection with the
investigation and trial of offences should give due consideration to the
need to protect the victim from any publicity which will unduly affect his
private life or dignity. If the type of offence or the particular status or
personal situation and safety of the victim make such special protection
necessary, either the trial before the judgment should be held in camera or
disclosure or publication of personal information should be restricted to
whatever extent is appropriate” (Part IF, para. 15).
It is further recommended that, “whenever this appears necessary, and
especially when organised crime is involved, the victim and his family should be
given
effective protection against intimidation and the risk of retaliation by the
offender”
(Part IG, para. 16).
*****
While publicity may be important, inter alia, for educating both legal
professionals and the public about the effects of victimization, it may also be so
distressing to victims that their identity should be withheld.35 Publicity may have
a
particularly devastating effect on victims in cases of sexual abuse, including
child abuse,
as well as in cases of organized crime and terrorism where disclosure of identity
may
place the victim’s life in danger. As a rule, it is in any event advisable to obtain
the
victims’ consent before they are identified in the mass media.36
Whenever the life and safety of victims, witnesses and their family members
are in danger as a consequence of retaliation, it may not be sufficient to withhold
the
person’s identity. The judicial authorities may have to take additional measures,
such as
withholding other relevant information and providing other forms of special
protection. In particularly serious cases, it may also be necessary to hold the
court
proceedings in camera, although international human rights law imposes specific
restrictions on any such decision (see article 14(1) of the International Covenant
on
Civil and Political Rights, article 8(5) of the American Convention on Human
Rights
and article 6(1) of the European Convention on Human Rights). In extreme cases,
it
may even be necessary for the competent authorities to provide special police
protection for the victims concerned, as well as for relatives and witnesses.
Whenever necessary, the competent authorities should protect the privacy
of victims of crime and should also protect victims, their families and
witnesses on their behalf from intimidation and retaliation.
Special protection of the right to privacy and of the safety of persons may
be particularly indicated in cases of sexual abuse as well as in cases of
organized crime and terrorism.
As a rule, it is always preferable to obtain the consent of the victim before
his or her name is given to the mass media.
2.4 Restitution, compensation and assistance
to victims of crime
2.4.1 General remarks
The questions of restitution, compensation and assistance to victims of crime
will, of necessity, be addressed only in very general terms in this context, as the
issues at
stake are too complex for more in-depth analysis. This part is therefore limited to
an
outline of the general principles that should guide national judicial authorities in
providing some sense of justice to crime victims, whose needs vary according to
the
nature of the crime committed, the place it was committed and the situation of
the
victims themselves.
Lawyers 765
35Ibid., p. 15, paras. 56-57.
36Ibid., p. 15, para. 57.
2.4.2 Restitution
According to paragraph 8 of the Declaration of Principles of Justice:
“Offenders or third parties responsible for their behaviour should, where
appropriate, make fair restitution to victims, their families or dependants.
Such restitution should include the return of property or payment for the
harm or loss suffered, reimbursement of expenses incurred as a result of
the victimization, the provision of services and the restoration of rights.”
Paragraph 9 states that “Governments should review their practices,
regulations and laws to consider restitution as an available sentencing option in
criminal
cases, in addition to other criminal sanctions.”
The term “restitution” means in this context that the offender restores to the
victim the rights that were breached by the criminal act. Restitution to victims is
of
course only possible when the property or money stolen is still available.
Restitution is
not, therefore, a viable solution in the case of violent crimes such as murder,
where
there can be no reinstatement of rights.
In addition to the restitution of property or payment for the harm and loss
suffered, the victim may also claim reimbursement of certain expenses. Such
claims
may require a clear listing of expenses that the victim has incurred as a result of
victimization.37
Whenever appropriate, persons responsible for criminal offences should
make fair restitution to the victims of their crimes for any harm or loss
suffered. Through restitution, the offender restores to the victim the rights
that were breached.
2.4.3 Compensation
Irrespective of whether compensation is available from the State, financial
compensation from the offender for physical or psychological injuries or other
harm
sustained in connection with crime may be an important element for the victim
in that
such compensation “is seen to be a recognition of the hurt done to the victim by
the
offender”. When an order for such compensation is made by the court, “it is also
a
symbol of the State’s concern for the victim”.38 This kind of recognition may have
an
important healing effect on the victim concerned and may also increase his or
her
confidence in the criminal justice system.
37In cases where the criminal activities have caused “substantial harm to the environment, restitution, if
ordered, should include,
as far as possible, restoration of the environment, reconstruction of the infrastructure, replacement of
community facilities and
reimbursement of the expenses of relocation, whenever such harm results in the dislocation of a
community” (paragraph 10 of the
Declaration of Basic Principles). In such cases, restitution can be a powerful means of encouraging
enterprises to use environmentally
friendly means of production and to adopt measures to prevent or minimize the risk of ecological disaster.
Another case in point is
the transport of toxic substances or substances that may otherwise be harmful to the environment by
means of transportation that do
not comply with required safety measures. However, where multiple acts of arson by individual persons
destroy large areas of forest
and numerous dwellings, restitution by the offenders is illusory.
38UN doc. A/ CONF.144/20, annex, Guide for Practitioners, p. 21, para. 83.
On this question, paragraph 12 of the Declaration on Basic Principles states
that, “when compensation is not fully available from the offender or other
sources,
States should endeavour to provide financial compensation to:
(a) Victims who have sustained significant bodily injury or impairment of
physical or mental health as a result of serious crimes;
(b) The family, in particular dependants of persons who have died or become
physically or mentally incapacitated as a result of such victimization.”
Lastly, paragraph 13 of the Declaration states that: “The establishment,
strengthening and expansion of national funds for compensation to victims
should be
encouraged. Where appropriate, other funds may also be established for this
purpose,
including in those cases where the State of which the victim is a national is not in
a
position to compensate the victim for the harm.”
*****
Under article 1 of the 1983 European Convention on the Compensation of
Victims of Violent Crimes, States parties “undertake to take the necessary steps
to give
effect to the principles set out in Part I of this Convention”. This means that
“when
compensation is not fully available from other sources the State shall contribute
to
compensate:
a. those who have sustained serious bodily injury or impairment of health
directly attributable to an intentional crime of violence;
b. the dependents of persons who have died as a result of such crime”
(art. 2(1)).
From this provision it follows that, for a victim to qualify for State
compensation, the offences must be
_ “intentional”;
_ “violent”;
_ “the direct cause of serious bodily injury or damage to health”.39
The reason for limiting the Convention to intentional offences is that “they
are particularly serious and give rise to compensation less often than non-
intentional
offences, which include the huge range of road traffic offences and are in
principle
covered by other schemes” such as private insurance and social security.40
The injury need not be physical, and compensation may also be payable “in
cases of psychological violence (for example serious threats) causing injury or
death”.41
The injury must, however, in all cases be “serious and directly attributable to the
crime”.
A causal relationship between the crime and the effects must, in other words, be
proven.42
Lawyers 767
39Explanatory Report, p. 5, para. 16.
40Ibid., p. 5, para. 17.
41Ibid., p. 5, para. 18.
42Ibid., p. 5, para. 19.
It follows that the Convention neither covers “slight injury or injury not
directly caused by the offence” nor “injury to other interests, notably property”.
However, poisoning, rape and arson “are to be treated as intentional violence”.43
According to article 2(2) of the Convention, compensation “shall be awarded
in the above cases even if the offender cannot be prosecuted or punished”. For
instance, minors or mentally ill people may not be subject to prosecution or may
not be
regarded as responsible for their acts, and an offender may even escape
prosecution
because he or she has acted by necessity as in cases of self-defence. It is of
course
essential that victims, in these cases too, should be able to obtain compensation
from
the State if it is not available from other sources.44
Article 3 further specifies that “compensation shall be paid by the State on
whose territory the crime was committed [both] to nationals of the States party
to this
Convention [and] to nationals of all member States of the Council of Europe who
are
permanent residents in the State on whose territory the crime was committed.”
The
purpose of including the latter group of victims was to enhance the protection of
migrant
workers.45 The Convention, which lays down minimum provisions, does not, of
course,
prevent States parties from enlarging the scope of the compensation available or
from
providing compensation to their nationals who are victims of violent crime
abroad or to
all foreigners.46 It should be noted in this connection that paragraph 3 of the
United
Nations Declaration of Basic Principles prohibits distinctions based on nationality.
It is also noteworthy that, according to the 1985 Council of Europe
Recommendation on the Position of the Victim, compensation as a penal
sanction
“should be collected in the same way as fines and take priority over any other
financial
sanction imposed on the offender. In all other cases, the victim should be
assisted in the
collection of the money as much as possible” (Part IE, para. 14).
Items compensated: Compensation in any given case under the Council of
Europe Convention shall comprise “at least the following items”:
_ loss of earnings;
_ medical and hospitalization expenses;
_ funeral expenses;
_ as regards dependants, loss of maintenance (art. 4).
These are the minimum requirements for which “reasonable compensation”
shall be paid, provided that the loss is verified in each case.47 Depending on the
terms of
national legislation, other items that may be compensated include:
_ “pain and suffering (pretium doloris);
_ loss of expectation of life;
_ additional expenses arising from disablement caused by an offence”.48
43Ibid., loc. cit.
45Ibid., p. 7, para. 25.
46Ibid., p. 7, para. 27.
47Ibid., p. 7, para. 28.
48Ibid., loc. cit.
According to the Explanatory Report, “compensation of these items is to be
calculated by the state paying the compensation according to the scales
normally
applied for social security or private insurance according to normal practice
under civil
law.”49
Conditions for compensation: The Convention imposes various conditions
on the granting of compensation. First, it allows the compensation scheme to set
“an
upper limit above which and a minimum threshold below which such
compensation
shall not be granted” (art. 5). Second, “the scheme may specify a period within
which
any application for compensation must be made” (art. 6).
An upper limit may be necessary because funds for compensation are not
unlimited and a minimum threshold is considered justified by the principle of de
minimis
non curat praetor, that is to say minor damage that can be covered by victims
themselves
does not interest the judge.50 The Convention does not set “rigidly quantified
limits”
for the simple reason that both financial resources and living standards vary
from
country to country.51
With regard to the time-limit for lodging a claim for compensation, it is
important that such claims be made as soon as possible after the commission of
the
crime so that:
_ “the victim may be assisted if in physical and psychological distress;
_ the damage may be ascertained and assessed without untoward difficulty”.52
Early professional care for crime victims may also increase the chances of a
speedy recovery and thus reduce medical and other costs incurred for
rehabilitation.
Third, compensation under the 1983 Convention may be reduced or refused
“on account of the applicant’s financial situation” (art. 7). The idea is that, since
compensation from public funds to a victim of crime “is an act of social solidarity,
it
may be unnecessary where the victim or his dependents are plainly comfortably
off”.
On the other hand, there is nothing in the Convention that prevents States from
awarding compensation “regardless of the victim’s or his dependants’ financial
position”.53
Lastly, compensation may also be “reduced or refused”
_ “on account of the victim’s or the applicant’s conduct before, during or after
the
crime, or in relation to the injury or death” – article 8(1);
_ “on account of the victim’s or the applicant’s involvement in organised crime or
his
membership of an organisation which engages in crimes of violence” – article
8(2);
_ “if an award or a full award would be contrary to a sense of justice or to public
policy
(ordre public)” – article 8(3).
Lawyers 769
49Ibid., p. 8, para. 28.
50Ibid., p. 8, para. 29.
51Ibid., p. 8, para. 30.
52Ibid., p. 8, para. 31.
53Ibid., pp. 8-9, para. 32.
The first of these grounds relates to improper behaviour by the victim in
relation to the crime or to the damage suffered, and “refers to cases where the
victim
triggers the crime, for example by behaving exceptionally provocatively or
aggressively,
or causes worse violence through criminal retaliation, as well as to cases where
the
victim by his behaviour contributes to the causation or aggravation of the
damage (for
example by unreasonably refusing medical treatment)”. Another reason for
reducing or
withholding compensation on this ground may be the refusal of the victim “to
report
the offence to the police or to co-operate with the administration of justice”.54
The second ground for reducing or even refusing compensation is where the
victim “belongs to the world of organised crime (for example drug trafficking) or
of
organisations which commit acts of violence (for example terrorist
organisations)”.
The victim may in such a case “be regarded as forfeiting the sympathy or
solidarity of
society as a whole [and may] be refused compensation or be paid reduced
compensation, even if the crime which caused the damage was not directly
related to
the foregoing activities”.55
Lastly, States parties may reduce or refuse compensation to victims of crime
when it would be repugnant to a sense of justice or contrary to public policy
(ordre
public). In such cases, they retain some discretion in awarding compensation and
can
refuse it “in certain cases where it is clear that a gesture of solidarity would be
contrary
to public feeling or interests or would be contrary to the basic principles of the
legislation of the state concerned”. For example, “a known criminal who was the
victim
of a crime of violence could be refused compensation even if the crime in
question was
unrelated to his criminal activities.”56
The abovementioned principles for reducing or refusing compensation to
victims of crime are equally applicable to dependants of victims who died as a
result of
violent crime.57
Other relevant issues: The Convention also contains provisions concerning
the avoidance of double compensation and the subrogation of rights, and
requires
States parties to take appropriate steps “to ensure that information about the
scheme is
available to potential applicants” (arts. 9-11).
For instance, in order to avoid double compensation under article 9 of the
Convention, “compensation already received from the offender or other sources
may
be deducted from the amount of compensation payable from public funds. It is
for the
Parties to specify which sums are so deductible.”58 The States may require that
compensation received by the victim from the offender after he or she has been
compensated by public funds be repaid in full or in part, depending on the sums
involved.59 This situation can arise, for instance, “where a victim suffering
hardship
receives state compensation pending decision of an action brought against an
offender
or agency [or where] the offender, unknown at the time of compensation from
public
54Ibid., p. 9, para. 34.
55Ibid., p. 9, para. 35.
56Ibid., p. 9, para. 36.
57Ibid., p. 9, para. 37.
58Ibid., p. 9, para. 38.
59Ibid., p. 10, para. 39.
funds, is subsequently traced and convicted, and has fully or partly made
reparation to
the victim”.60
For public compensation schemes to be useful, the public must know about
their existence. But studies have found that, because of public ignorance, such
schemes
are rarely used.61 To remedy this situation, article 11 of the Convention imposes
a duty
on States parties to see to it that information on public compensation schemes is
available to potential victims of crime. According to the Explanatory Report, “the
main
responsibility for informing the victim of his compensation rights should lie with
the
authorities and agencies dealing with him immediately after the offence (the
police,
hospitals, the examining judge, the public prosecutor’s office, etc.). Information,
specially published by the competent authorities, should be available to such
agencies
who should distribute this, whenever practicable, to the persons concerned.”62
The
mass media also have a useful role to play in publicizing financial as well as
other kinds
of assistance available to victims of crime.63
Compensation to victims of crime for physical or psychological harm
suffered as a consequence of crime is an important recognition of concern
for the victim.
When such compensation is not fully available from the offender or other
sources such as private insurance, the State should provide it either to the
victim or to his or her dependants, as the case may be.
At the European level, member States of the Council of Europe may
have a treaty obligation to provide compensation to victims of violent
crime when such compensation is not available from other sources.
Such compensation may, however, be reduced or refused, inter alia in the
light of the victim’s conduct in relation to the commission of the criminal
act or in cases where the victim is known to be involved in organized
crime such as drug trafficking or terrorism.
2.4.4 Assistance
In addition to various financial needs, victims of violent crimes may also
require immediate or even long-term medical care as well as other forms of
assistance.
These needs are recognized in paragraph 14 of the United Nations Declaration of
Basic
Principles, according to which:
“Victims should receive the necessary material, medical, psychological and
social assistance through governmental, voluntary, community-based and
indigenous means.”
Lawyers 771
60Ibid., loc. cit.
61Ibid., p. 10, para. 42.
62Ibid., loc. cit.
63Ibid.
This provision envisages various forms of assistance not only from the State
but also from the community and specialized associations. Much can be
accomplished
for victims of crimes by developing strong local associations or agencies with
specialized personnel trained in the specific needs of crime victims.64 The need
for
assistance can vary in terms of both the victim and the effects of victimization.
Injured
victims clearly require swift medical help. Such help is also essential in order to
document the effects of the crime on the victim for the purpose of proving any
criminal
prosecution or civil claim against the offender.65
Paragraph 17 of the Declaration of Basic Principles further emphasizes that
“in providing services and assistance to victims, attention should be given to
those who
have special needs because of the nature of the harm inflicted” or because of
factors
such as discrimination on the grounds listed in paragraph 3 of the Declaration.
Certain
groups of victims, such as victims of sexual crimes, may indeed need specialized
treatment, including long-term emotional support by medical personnel skilled in
dealing, for example, with rape victims. Victims of serious sex crimes may also
need
medical follow-up over an extended period owing to the HIV/AIDS problem.66 In
many cases, victims of terrorist attacks need not only extensive medical
treatment but
also both immediate and long-term psychological assistance by specially trained
professionals in order to help them come to terms with the traumatic experience.
Major
criminal events such as terrorist acts may also require specialized equipment
such as
temporary housing, mortuaries, feeding stations and so forth. States should be
prepared
to deal with this kind of situation by developing contingency plans at the
national,
regional and local levels and should keep regularly updated lists of equipment
and
qualified personnel.67
Victims may also need various kinds of practical help after the commission
of a crime. In cases of burglary, locks or other damaged property may have to be
repaired, and victims of arson or domestic violence may need temporary
accommodation.68 Other victims may need social support services for some time
after
the crime, such as help with shopping or housekeeping and/or assistance in
looking
after small children.
For assistance schemes to work efficiently, information about their existence
is, as emphasized throughout this chapter, essential. Paragraph 15 of the
Declaration of
Basic Principles provides that:
“Victims should be informed of the availability of health and social
services and other relevant assistance and be readily afforded access to
them.”
As noted above, the question of training for persons who deal with victims of
crime is also important and, as specified in paragraph 16 of the Declaration:
64See UN doc. A/ CONF.144/20, annex, Guide for Practitioners, p. 23, para. 92.
65Ibid., p. 25, paras. 99-100.
66Ibid., p. 25, paras. 101-102.
68Ibid., p. 26, para. 107.
“Police, justice, health, social service and other personnel concerned
should receive training to sensitize them to the needs of victims, and
guidelines to ensure proper and prompt aid.”
It is particularly important that members of the police force and the legal
professions, such as judges, prosecutors and lawyers, are trained to have a
sound
understanding of the traumatic impact that crime can have on human beings.
They
should also be fully conversant with the terms of the compensation and
assistance
schemes available to victims of crime so that they can ensure that such
information is
consistently and effectively conveyed to the victims concerned.
Apart from financial needs, victims of crime may have a variety of needs
of a material, medical, psychological and social nature.
Such needs for assistance will vary according the situation of the victim
and the nature of the crime. To be able to provide victims of crime with
prompt and efficient help, all relevant professional groups, including
judges, prosecutors and lawyers, must be sensitized to the needs of
victims
and available assistance schemes.
3. Protection and Redress for
Victims of Human Rights
Violations
The second part of this chapter will deal exclusively with victims of human
rights violations. Contrary to the situation in respect of victims of ordinary crime,
international human rights law lays down some clear legal rules regarding the
responsibility of States vis-à-vis abuses of power that constitute violations of
individual
rights and freedoms. Moreover, these rules have been further developed in a
large
number of cases by the international monitoring bodies. However, only a brief
survey is
feasible in this context of States’ general legal duty to ensure the effective
protection
of human rights and of the most relevant specific legal obligations that this
entails: the
duty to prevent human rights violations; the duty to provide domestic
remedies; and
the duty to investigate alleged human rights violations, to prosecute those
suspected
of having committed them and to punish those found guilty. Lastly, the duty to
provide
restitution or compensation to victims of human rights violations and the
problem of
impunity for human rights violations will be examined.69
Lawyers 773
69The present chapter is based only on legal provisions interpreted by international monitoring bodies. The
question of remedies
for victims of human rights violations has, however, also been dealt with, inter alia, by the United Nations
Commission on Human
Rights; see, for example, UN doc. E/CN.4/2000/62, The right to restitution, compensation and rehabilitation
for victims of gross
violations of human rights and fundamental freedoms, Final report of the Special Rapporteur, Mr. M. Cherif
Bassiouni; see, in
particular, the annex to this report containing draft Basic Principles and Guidelines on the Right to a
Remedy and Reparation for
Victims of Violations of International Human Rights and Humanitarian Law.
Before States’ various duties to protect human rights are considered, the
notion of “victim” will be analysed.
3.1 The notion of victim
According to paragraph 18 of the United Nations Declaration of Basic
Pinciples:
“‘Victims’ means persons who, individually or collectively, have suffered
harm, including physical or mental injury, emotional suffering, economic
loss or substantial impairment of their fundamental rights, through acts or
omissions that do not yet constitute violations of national criminal laws but
of internationally recognized norms relating to human rights.”
This definition is somewhat peculiar in that, first, it seems to presume that
violations of international human rights standards are limited to the field of
criminal
law. This is not, of course, the case. Such violations can also occur under civil
law, such
as family law and the law of succession. Other fields of law that may be relevant
include
press law, administrative law, labour law, social security law and environmental
law.
Second, an act or omission may be contrary to national law and still constitute
a violation of international human rights law. Notwithstanding national law, a
State can
in principle be held responsible at the international level for an act or omission
that
violates internationally recognized human rights standards until it has provided
an
effective remedy to the victim or victims of the violation.
Third, the reference to “substantial” impairment raises some difficulties of
interpretation and cannot be adequately understood in the abstract. Indeed, an
act or
omission on the part of a State may violate international human rights standards
although the impairment for the victim concerned has not been “substantial”.
The
victim is still a “victim” as understood by international law, but the response to
the
violation will vary accordingly. Instead of awarding restitution or damages, the
international monitoring body may, for instance, consider the very finding of a
violation in a specific case to be a sufficient recognition of the harm incurred. In
many
cases, however, the violations are grave and therefore require, as will be shown
below, a
variety of measures in order to remedy or at least reduce the negative
consequences of
such violations for the victims or their next-of-kin.
It follows from the foregoing that, for the purposes of the second part of this
chapter, a much simpler definition of a “victim” of human rights violations will
have to
be adopted:
A “victim” is a person whose nationally or internationally
recognized human rights and fundamental freedoms have
been violated as a consequence of governmental acts or
omissions.
It is important to point out that a “victim” can also be a family member who is
suffering hardship because of a disappearance and/or arbitrary killing. The
Human
Rights Committee and the Inter-American and European Courts of Human Rights
have all accepted that mothers of victims of a human rights violation may also
be
considered to be victims. The profound sadness, stress and anguish that mothers
suffer
as a result of such serious human rights violations constitute per se a violation of
their
right not to be subjected to ill-treatment, as prohibited by international legal
standards
such as article 7 of the International Covenant on Civil and Political Rights, article
5(2)
of the American Convention on Human Rights and article 3 of the European
Convention on Human Rights.70
*****
A particularly serious aspect of abuses of power such as human rights
violations is that they are committed by – or at least with the knowledge of –
persons or
authorities that are expected to protect the individual and his or her rights
instead of
violating them. In other words, the sense of trust that should have existed has
been
seriously betrayed. The situation becomes singularly alarming when violations of
the
right to life and the right to security and liberty of the person occur and are even
widespread, as when abduction, involuntary disappearances and torture become
part of
a State’s administrative practice. Victimization then often has a much deeper
adverse
impact on the persons affected than where they are “simply” victims of ordinary
crimes. For victims of State or State-sponsored violence, it is important, for
purposes
of rehabilitation, to obtain recognition by the State of the wrong committed and
to
receive various forms of help and assistance.
A “victim” is a person whose nationally or internationally recognized
human rights and fundamental freedoms have been violated as a
consequence of governmental acts or omissions.
Close relatives of disappeared, tortured and arbitrarily killed persons may
be considered to be victims of violations of their own right not to be
subjected to ill-treatment.
Human rights violations are a particularly serious form of abuse of power
in that they are committed by – or with the knowledge of – persons or
authorities whose duty it is to protect the individual and his or her rights.
Victims of human rights violations may require multiple forms of help
and assistance to deal with the effects of victimization, including
recognition by the State of the wrongs committed.
Lawyers 775
70See Communication No. 107/1981. Quinteros v. Uruguay (Views adopted on 21 July 1983) in UN doc.
GAOR, A/38/40, p. 224,
para. 14; I-A Court HR, Case of Villagrán Morales et al., judgment of November 19, 1999, Series C, No. 63,
pp. 179-180, paras. 176-177; Eur.
Court HR, Case of Kurt v. Turkey, judgment of 25 May 1998, Reports 1998-III, pp. 1187-1188, paras. 130-
134.
3.2 The general legal duty to ensure the effective
protection of human rights
This section will simply highlight some general considerations relating to
States’ legal duty effectively to protect human rights and fundamental freedoms.
The
provisions dealing specifically with questions of prevention, domestic remedies,
investigations and so forth will be discussed in greater detail in the relevant
subsections
below.
Under article 2(1) of the International Covenant on Civil and Political Rights,
each State party “undertakes to respect and to ensure to all individuals within
its
territory and subject to its jurisdiction the rights recognized in the present
Covenant”
(emphasis added). In interpreting article 2, the Human Rights Committee
considers it
necessary “to draw the attention of States parties to the fact that the obligation
under
the Covenant is not confined to the respect of human rights, but that States
parties
have also undertaken to ensure the enjoyment of these rights to all individuals
under
their jurisdiction. This aspect calls for specific activities by the States parties to
enable
individuals to enjoy their rights.”71 The obligation to ensure thus gives rise to
positive
State party obligations to secure the enjoyment of the guaranteed rights and
freedoms
to all persons within their jurisdiction. It follows from this basic and positive legal
duty
that States parties may also be required effectively to investigate, prosecute and
punish
violations of individual rights and freedoms.72
At the regional level, article 1 of the African Charter on Human and Peoples’
Rights may at first sight seem to use somewhat less categorical language than
the
International Covenant when stating that States parties “shall recognize the
rights,
duties and freedoms enshrined in this Charter and shall undertake to adopt
legislative or
other measures to give effect to them”. However, the reference to “other
measures”
suggests that this provision entails a clear obligation to take affirmative steps to
comply
with the obligations laid down by the Charter. This view has been confirmed by
the
African Commission on Human and Peoples’ Rights, which has held that, under
article
1 of the African Charter, States parties not only “recognise the rights, obligations
and
freedoms proclaimed in the Charter [but] they also commit themselves to
respect them
and take measures to give effect to them”.73
71See General Comment No. 3 (Article 2 – Implementation at the national level), in UN doc.
HRI/GEN/1/Rev.5, Compilation of
General Comments and General Recommendations Adopted by Human Rights Treaty Bodies (hereinafter
referred to as United Nations Compilation
of General Comments), p. 112, para. 1; emphasis added.
72See, for example, Communication No. 821/1998, Chongwe v. Zambia (Views adopted on 25 October
2000), in GAOR, A/56/40
(vol. II), p. 143, paras. 7-8.
73ACHPR, Avocats Sans Frontières (on behalf of Gaëtan Bwampamye) v. Burundi, Communication
No.231/99 decision adopted during the
28th Ordinary session, 23 October – 6 November 2000, para. 31 of the decision as published at:
As a general rule it must be emphasized that, notwithstanding the fact that the
legal obligations to “respect” and to “ensure” human rights are not included
expressis
verbis in the treaty concerned, States in any event have a legal duty to perform
their treaty
obligations in good faith. This basic rule of international law, also known as
pacta sunt
servanda, has been codified in article 26 of the Vienna Convention on the Law
of
Treaties and is, of course, equally applicable to human rights treaties as to other
international treaties. By failing, for instance, to prevent or vigorously to
investigate
alleged human rights violations and, where need be, to follow up the
investigation with
a prosecution, a State undermines its treaty obligations and hence also incurs
international responsibility for being in breach of the law.
*****
Article 1 of the American Convention on Human Rights uses terms
reminiscent of those in article 2 of the International Covenant in that the States
parties
“undertake to respect the rights and freedoms recognized herein and to
ensure to all
persons subject to their jurisdiction the free and full exercise of those rights and
freedoms without any discrimination” (emphasis added).
These terms were interpreted by the Inter-American Court of Human Rights
in the Velásquez Rodríguez case, which concerned the disappearance and likely
death of
Mr. Velásquez at the hands of members of the Honduran National Office of
Investigation and the Armed Forces. With regard to the obligation to “respect the
rights and freedoms” recognized by the Convention, the Court emphasized that
“the
exercise of public authority has certain limits which derive from the fact that
human
rights are inherent attributes of human dignity and are, therefore, superior to the
power
of the State.” This also means that “the protection of human rights must
necessarily
comprise the concept of the restriction of the exercise of state power.”74
Moreover, the obligation to “ensure” the free and full exercise of the rights
guaranteed by the Convention
“implies the duty of the States Parties to organize the governmental
must prevent, investigate and punish any violation of the rights recognized
by the Convention and, moreover, if possible attempt to restore the right
violated and provide compensation as warranted for damages resulting
from the violation.”75
The Court added that:
“The obligation to ensure the free and full exercise of human rights is not
comply with this obligation – it also requires the government to conduct
itself so as to effectively ensure the free and full exercise of human rights.”76
Lawyers 777
74I-A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1988, Series C, No. 4, pp. 151-152, para.
165.
75Ibid., p. 152, para. 166.
76Ibid., p. 152, para. 167.
What is “decisive” in determining whether a right recognized by the
Convention has been violated is, in the words of the Court, whether the violation
has
occurred “with the support of the acquiescence of the government, or whether
the
State has allowed the act to take place without taking measures to prevent it or
to punish
those responsible”.77
The States parties’ legal undertakings under article 1 of the American
Convention thus form a clear web of preventive, investigative, punitive and
reparative
duties aimed at effective protection of the rights of the human person, all of
which will
be further detailed below.
*****
Lastly, article 1 of the European Convention on Human Rights stipulates that
“the High Contracting Parties shall secure to everyone within their jurisdiction
the
rights and freedoms defined in Section I of this Convention” (emphasis added).
Rather
than giving an independent interpretation of the term “secure” in article 1, the
European Court of Human Rights has preferred to weave this term into the other
substantive provisions of the Convention and its Protocols. For instance, when
interpreting the right to life as guaranteed by article 2 of the Convention, the
Court has
held that the first sentence of article 2(1) “enjoins the State not only to refrain
from the
intentional and unlawful taking of life, but also to take appropriate steps to
safeguard
the lives of those within its jurisdiction.”78 In the words of the Court:
“This involves a primary duty on the State to secure the right to life by
putting in place effective criminal-law provisions to deter the commission
of offences against the person backed up by law-enforcement machinery
for the prevention, suppression and punishment of breaches of such
provisions. It also extends in appropriate circumstances to a positive
obligation on the authorities to take preventive operational measures to
protect an individual or individuals whose life is at risk from the criminal
acts of another individual.”79
In the case of McCann and Others v. the United Kingdom, the Court held that “a
general legal prohibition of arbitrary killing by the agents of the State would be
ineffective, in practice, if there existed no procedure for reviewing the lawfulness
of the
use of lethal force by State authorities. The obligation to protect the right to life
[in
article 2(1)], read in conjunction with the State’s general duty under Article 1 of
the
Convention to ‘secure to everyone within their jurisdiction the rights and
freedoms
defined in (the) Convention’, requires by implication that there should be some
form of
effective official investigation when individuals have been killed as a result of the
use of
force by, inter alios, agents of the State.”80
77Ibid., p. 154, para. 173.
78Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of 28 March 2000, para. 85 of the text of the
judgment as published at:
http://echr.coe.int/.
80Eur. Court HR, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A, No.
324, p. 49, para. 161.
In order to secure the right to life under article 2 of the Convention, the High
Contracting Parties are thus under an obligation to resort to effective measures
of
prevention, investigation, suppression and punishment of violations of this right.
It is
noteworthy that the obligation to prevent offences against the person is not
necessarily
complied with by the implementation of general preventive policy measures but
may, in
individual cases, also imply a duty to take positive measures of an operational
nature
(see infra, subsection 3.3).
The positive obligations that may be “inherent in an effective respect of the
rights concerned”81 under the European Convention are not limited to article 2
and the
right to life but may also have implications for the protection of other rights and
freedoms such as the right to freedom from torture in article 3,82 the right to
respect for
one’s family life in article 8,83 the right to freedom of expression in article 1084
and the
right to freedom of peaceful assembly and to freedom of association in article
11.85 The
nature and extent of such obligations depend, however, on the right at issue and
the
facts of the case considered.
Lastly, it should be noted that the duty to secure the rights and freedoms laid
down in the European Convention and its Protocols may also entail a legal duty
for the
Contracting States to take positive action to ensure respect for those rights and
freedoms between private citizens.86
Irrespective of the terms used in international human rights treaties,
States parties are duty bound to provide effective protection for the rights
and freedoms recognized therein to all persons within their jurisdiction.
These legal obligations comprise the duty effectively to prevent,
investigate, prosecute, punish and redress human rights
violations.
Positive obligations may be inherent in the effective protection of a human
right recognized by international law.
Lawyers 779
81Eur. Court HR, Case of Ozgur Gundem v. Turkey, judgment of 16 March 2000, para. 42 of the text of the
judgment as published at:
p. 3290, para. 102.
83Eur. Court HR, Case of Gaskin v. the United Kingdom, judgment of 7 July 1989, Series A, No. 160, pp. 16-
20, paras. 41-49.
84See, for example, Eur. Court HR, Case of Ozgur Gundem v. Turkey, judgment of 16 March 2000, para. 43,
as published at
85Eur. Court HR, Case of the Plattform “Ärzte für das Leben” v. Austria, judgment of 21 June 1988, Series A,
No. 139, p. 12, para. 32.
86Eur. Court HR, Case of X and Y v. the Netherlands, judgment of 26 March 1985, Series A, No. 91: in this
case the Government had a
positive legal duty to ensure an effective right to respect for the private life of a mentally handicapped girl
who had been raped but
who was legally unable to institute criminal proceedings against the alleged perpetrator of the crime; this
gap in domestic law
constituted a violation of article 8 of the European Convention, p. 14, para. 30. See also Eur. Court HR, A. v.
the United Kingdom,
judgment of 23 September 1998, Reports 1998-VI: in this case domestic law did not provide adequate
protection for a child who had been
beaten by his stepfather; “the failure to provide adequate protection” constituted a violation of article 3 of
the European Convention,
p. 2700, para. 24.
3.3 The duty to prevent human rights violations
Prevention is the alpha and omega of the effective protection of the rights and
freedoms of the human person, and it is thus the ultimate purpose of
international
human rights law as well as a key to the creation of a national and international
society
in which all persons can live in freedom, peace and security. Prevention, the
importance
of which has been emphasized by all international monitoring bodies, begins with
the
incorporation of international human rights obligations in the domestic legal
system.87
Domestic law must then be consistently and fearlessly applied by all competent
authorities, for instance in full independence from the Executive, because a law,
no
matter how well and elegantly drafted, only has a preventive impact if potential
offenders know that they will be pursued in the courts for their trespasses and
crimes.
Indeed, the second part of this chapter illustrates some of the essential
components of
prevention, namely the existence of effective domestic remedies and the
prompt,
vigorous and impartial investigation of alleged human rights violations.
However, in many cases effective prevention also requires social,
administrative, educational and other measures such as international and cross-
border
cooperation,88depending on the needs, problems and circumstances of the
country
involved. Some examples are given below of references to prevention by the
international monitoring bodies relating to arbitrary killings, disappearances and
torture.
Although the Human Rights Committee has not elaborated its views on States
parties’ duty to prevent human rights violations in general, it has often
emphasized the
need for prevention with regard to specific issues. Thus, States parties should
inform
the Committee in their periodic reports about “the legislative, administrative,
judicial
and other measures they take to prevent and punish acts of torture” and other
forms of
ill-treatment in conformity with the provisions of the International Covenant on
Civil
and Political Rights.89 More specifically, it recommended that Uzbekistan “should
institute an independent system of monitoring and checking all places of
detention and
penal institutions on a regular basis, with the purpose of preventing torture and
other
abuses of power by law enforcement officials”.90
The Committee has also stated that:
“3. The protection against arbitrary deprivation of life which is explicitly
required by ... article 6(1) is of paramount importance. The Committee
considers that States parties should take measures not only to prevent and
punish deprivation of life by criminal acts, but also to prevent arbitrary
killing by their own security forces. The deprivation of life by the
87On the preventive role of legislation criminalizing ideas based on racial superiority, see the Committee on
the Elimination of
Racial Discrimination, in UN doc. GAOR, A/56/18, p. 59, para. 349.
88On the importance of international and cross-border cooperation for the purpose of preventing trafficking
in women, see the
Committee on the Elimination of Discrimination against Women, in UN doc. GAOR, A/55/38, p. 38, para. 372.
89General Comment No. 20 (Article 7), in United Nations Compilation of General Comments, p. 140, para. 8.
authorities of the State is a matter of the utmost gravity. Therefore, the law
must strictly control and limit the circumstances in which a person may be
deprived of his life by such authorities.”91
In the Committee’s view, “States parties should also take specific and effective
measures to prevent the disappearance of individuals, something which
unfortunately
has become all too frequent and leads too often to arbitrary deprivation of life.”92
Lastly, when the Committee concludes that a State party has violated its
obligations under the Covenant in a communication brought under the Optional
Protocol to the Covenant, it consistently informs the State party concerned that it
is
under an obligation to prevent such violations from occurring in the future.93
The notion of prevention was analysed in somewhat more detail by the
Inter-American Court of Human Rights in the Velásquez Rodríguez case, in which
it ruled
that a State party to the American Convention on Human Rights “has a legal
duty to
take reasonable steps to prevent human rights violations and to use the means
at its
disposal to carry out a serious investigation of violations committed within its
jurisdiction, to identify those responsible, to impose the appropriate punishment
and to
ensure the victim adequate compensation”.94 Importantly, the Court added that:
“175. This duty to prevent includes all those means of a legal, political,
administrative and cultural nature that promote the protection of human
rights and ensure that any violations are considered and treated as illegal
acts, which, as such, may lead to the punishment of those responsible and
the obligation to indemnify the victim for damages. It is not possible to
make a detailed list of all such measures, since they vary with the law and
the conditions of each State Party. Of course, while the State is obligated to
prevent human rights abuses, the existence of a particular violation does
not, in itself, prove the failure to take preventive measures. On the other
hand, subjecting a person to official, repressive bodies that practice torture
and assassination with impunity is itself a breach of the duty to prevent
violations of the rights to life and physical integrity of the person, even if
that particular person is not tortured or assassinated, or if those facts
cannot be proven in a concrete case.”95
In the Street Children case, the Court also referred to the abovementioned
statement by the Human Rights Committee regarding protection against the
arbitrary
deprivation of life, emphasizing “the particular gravity” of the case, which
involved the
abduction, torture and killing of several children and which also violated the
State’s
“obligation to adopt special measures of protection and assistance for the
children
within its jurisdiction”.96
Lawyers 781
91General Comment No. 6 (art. 6), in United Nations Compilation of General Comments, p. 115, para. 3.
92Ibid., p. 115, para. 4.
93Communication No. 687/1996, Rojas García v. Colombia (Views adopted on 3 April 2001) in UN doc.
p. 54, para. 12, and Communication No. 821/1998, Chongwe v. Zambia (Views adopted on 25 October
2000), p. 143, para. 7.
95Ibid., p. 155, para. 175.
96I-A Court HR, Villagrán Morales et al. Case (the “Street Children” case), judgment of November 19, 1999,
Series C, No. 63, pp. 170-171,
paras. 145-146.
The use of effective domestic remedies for purposes of prevention has also
been underlined by the Inter-American Court, in particular with regard to the writ
of
habeas corpus, the aim of which “is not only to ensure respect for the right to
personal
liberty and physical integrity, but also to prevent the persons’s disappearance or
the
keeping of his whereabouts secret and, ultimately, to ensure his right to life”.97
*****
In the case of Kaya v. Turkey, which concerned the disappearance and
subsequent death following torture of the victim, the European Court of Human
Rights made the following finding with regard to Turkey’s obligations under
article 1 of
the European Convention on Human Rights, read in conjunction with the
prohibition
of torture in article 3:
“115. The obligation imposed on High Contracting Parties under article
1... to secure to everyone within their jurisdiction the rights and freedoms
defined in the Convention, taken together with article 3, requires States to
take measures designed to ensure that individuals within their jurisdiction
are not subjected to torture or inhuman or degrading treatment, including
such ill-treatment administered by private individuals ... State responsibility
may therefore be engaged where the framework of law fails to provide
adequate protection ... or where the authorities fail to take reasonable steps
to avoid a risk of ill-treatment which they knew or ought to have known ...
116. The Court finds that the authorities knew or ought to have known
that Hasan Kaya was at risk of targeting as he was suspected of giving
assistance to wounded members of the PKK. The failure to protect his life
through specific measures and through the general failings in the criminal
law framework placed him in danger not only of extra-judicial execution
but also of ill-treatment from persons who were unaccountable for their
actions. It follows that the Government is responsible for ill-treatment
suffered by Hasan Kaya after his disappearance and prior to his death.”98
An important conclusion of this judgment is that the duty to prevent human
rights violations comprises measures to protect people from being tortured not
only by
State officials but also by private persons. In simple terms, States must not put a
person
in a situation where he or she runs the risk of being subjected to treatment
contrary to
article 3 of the Convention.
*****
While the foregoing references and cases relating to the prevention of human
rights violations mainly concern particularly serious crimes such as torture,
abduction
and arbitrary deprivation of life, the obligation to prevent violations is equally
applicable to all basic rights and freedoms recognized by national and
international law.
97I-A Court HR, Suárez Rosero Case, judgment of November 12, 1997, Series C, No. 35, p. 75, para. 65.
98Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of 28 March 2000, paras. 115-116 of the text of
the judgment as published
at http://echr.coe.int/
The duty to prevent violations of human rights is inherent in the legal
duty to ensure their effective protection.
Preventive measures may be of a legal, administrative, political, cultural,
social, educational, remedial or other nature, depending on the problem
and the country involved.
The duty to prevent human rights violations entails a duty not to place a
person in circumstances where he or she is at risk of disappearing, being
tortured or arbitrarily killed, even if such illegal acts are committed by
private individuals.
3.4 The duty to provide domestic remedies
As seen above, the legal duty to provide domestic remedies for alleged victims
is inherent in the general duty to provide effective human rights protection.
Practice has
consistently and convincingly shown that, unless an individual has an effective
right to
have recourse to independent and impartial courts or administrative authorities
at the
national level for the purpose of remedying an alleged human rights violation,
the true
enjoyment of human rights will remain illusory. From the point of view of States,
the
existence of effective domestic remedies has the advantage of allowing them to
remedy
a wrong, thus avoiding international responsibility and a possible rebuke from an
international monitoring body.
In this section, selected statements and decisions will provide a general idea of
the importance that international monitoring bodies attach to the availability of
effective remedies for violations of human rights at the national level.
At the universal level, the right to domestic remedies was first included in
article 8 of the Universal Declaration of Human Rights, which states that
everyone “has
the right to an effective remedy by the competent national tribunals for acts
violating
the fundamental rights granted him by the constitution or by law”. It was also
incorporated in article 2(3) of the International Covenant on Civil and Political
Rights,
pursuant to which each State party to the Covenant undertakes:
“(a) To ensure that any person whose rights or freedoms as herein
recognized are violated shall have an effective remedy, notwithstanding
that the violation has been committed by persons acting in an official
capacity;
(b) To ensure that any person claiming such a remedy shall have his right
thereto determined by competent judicial, administrative or legislative
authorities, or by any other competent authority provided for by the legal
system of the State, and to develop the possibilities of judicial remedy;
(c) To ensure that the competent authorities shall enforce such
Lawyers 783
It follows from the clear terms of this provision that the remedies available
must be effective and that their enforcement must be ensured by the
competent
authorities. The remedies may be, for instance, judicial or administrative,
although a
reading of article 2(3)(b) in fine suggests that the drafters of the Covenant had a
preference for judicial remedies. It is noteworthy that, for the purpose of
complying
with the exhaustion of domestic remedies rule laid down in article 5(2)(b) of the
Optional Protocol to the Covenant, the Human Rights Committee holds that an
alleged
victim is required to resort only to such remedies as have “a reasonable
prospect” of
being “effective”. Moreover, it is for the Government alleging the availability of
remedies to prove their effectiveness.99
Although remedies must be available for all alleged violations of the rights
guaranteed by the Covenant, the need for available, effective, independent and
impartial remedies is particularly urgent for people deprived of their liberty. The
Human Rights Committee has therefore emphasized the need for effective
guarantees
and remedies for detained persons in respect of all acts prohibited by article 7 of
the
Covenant, namely torture and cruel, inhuman and degrading treatment and
punishment. In their periodic reports States parties should, for instance,
“indicate how
their legal system effectively guarantees the immediate termination of all the
acts
prohibited by article 7 as well as appropriate redress”.100 In the Committee’s
view, the
right to bring complaints against ill-treatment, as prohibited by article 7, “must
be
recognized in the domestic law” and the complaints
“must be investigated promptly and impartially by competent authorities
so as to make the remedy effective”.101
The reports of States parties “should provide specific information on the
remedies available to victims of maltreatment and the procedure that
complainants
must follow, and statistics on the number of complaints and how they have been
dealt
with”.102
The Committee was “deeply concerned at the reports of torture and excessive
use of force” by law enforcement officials in Venezuela, at the State party’s
“apparent
delay in responding to such occurrences [and at] the absence of independent
mechanisms to investigate the reports in question. The right to recourse to the
courts is
not a substitute for such mechanisms. The State party should establish an
independent
body empowered to receive and investigate all reports of excessive use of force
and
other abuses of authority by the police and other security forces, to be followed,
where
appropriate, by prosecution of those who appear to be responsible for them.”103
99See, for example, Communication No. R.1/4, W. Torres Ramírez v. Uruguay (Views adopted on 23 July
1980), in UN doc. GAOR,
A/35/40, pp. 122-123, para. 5.
14.
101Ibid., loc. cit.
102Ibid.
The Committee also expressed concern in the case of Trinidad and Tobago
“at the lack of remedies under domestic legislation, including the Constitution,
for
victims of discrimination within the full ambit of articles 2.3 and 26 of the
Covenant.
The State party should ensure that remedies are available for the full range of
discriminatory situations falling within the protection given by those articles.”104
*****
Article 13 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment requires each State party to ensure
“that any individual who alleges he has been subjected to torture in any
territory under its jurisdiction has the right to complain to, and to have his
case promptly and impartially examined by, its competent authorities.
Steps shall be taken to ensure that the complainant and witnesses are
protected against all ill-treatment or intimidation as a consequence of his
complaint or any evidence given.”
The Committee against Torture recommended in this regard that China
establish a “comprehensive system ... to review, investigate and effectively deal
with
complaints of maltreatment, by those in custody of every sort”.105 It also
recommended
that Jordan “further strengthen measures to protect the right of detainees,
especially
their access to judges, lawyers and doctors of their choice”.106 Access to the legal
profession is, of course, also essential in order to enable people in detention to
vindicate
their rights. The Committee thus welcomed the establishment by the
Panamanian
Public Prosecutor’s Department “of a ‘prison mailbox’ system to facilitate the
exercise
by prisoners of their right to lodge complaints and petitions”.107
*****
Article 6 of the International Convention on the Elimination of All Forms of
Racial Discrimination also imposes a duty on States parties to provide “effective
protection and remedies, through the competent national tribunals and other
State
institutions, against any acts of racial discrimination which violate [a person’s]
human
rights and fundamental freedoms contrary to this Convention”. On this point, the
Committee on the Elimination of Racial Discrimination recommended that Sudan
“continue its efforts to establish a domestic legal order giving full effect to
[articles 4, 5
and 6] of the Convention and to ensure effective and equal access to remedies
through
the competent national tribunals and other State institutions against any acts of
racial
discrimination and related tolerance”.108 With regard to article 6, it also
recommended
that France “reinforce the effectiveness of the remedies available to victims of
racial
discrimination”.109 The same Committee has also begun to take into account “the
Lawyers 785
104Ibid., p. 32, para. 10.
gender-related dimensions of racial discrimination”. In so doing, it will give
“particular
consideration”, inter alia, to the “availability and accessibility of remedies and
complaint mechanisms for racial discrimination”.110
*****
Under article 2(c) of the Convention on the Elimination of All Forms of
Discrimination against Women, the States parties undertake “to establish legal
protection of the rights of women on an equal basis with men and to ensure
through
competent national tribunals and other public institutions the effective protection
of
women against any act of discrimination”. The Committee on the Elimination of
Discrimination against Women urged Belarus “to create adequate remedies for
women
to obtain easy redress from direct or indirect discrimination especially in the area
of
employment [and] to improve women’s access to such remedies, including
access to
courts, by facilitating legal aid to women and embarking on legal literacy
campaigns”.111
The Committee also recommended that Cameroon “provide access to legal
remedies”
for women subjected to various forms of violence.112
*****
Lastly, it is interesting to note in this context that the question of effective
remedies for human rights violations was also dealt with in Part I, paragraph 27,
of the
Vienna Declaration and Programme of Action, in which the participating States
agreed
by consensus that:
“Every State should provide an effective framework of remedies to redress
human rights grievances or violations. The administration of justice,
including law enforcement and prosecutorial agencies and, especially, an
independent judiciary and legal profession in full conformity with
applicable standards contained in international human rights instruments,
are essential to the full and non-discriminatory realization of human rights
and indispensable to the processes of democracy and sustainable
development.”113
The right to a domestic remedy is, of course, also guaranteed by the regional
human rights treaties. Article 7(1)(a) of the African Charter on Human and
Peoples’
Rights stipulates that every individual shall have “the right to an appeal to
competent
national organs against acts violating his fundamental rights as recognized and
guaranteed by conventions, laws, regulations and customs in force”. This
provision was
violated, inter alia, in a case against Zambia, in which one of the victims had
been
denied the opportunity to appeal his deportation order. In the view of the African
Commission on Human and Peoples’ Rights, this deprivation of the right to a fair
110General Recommendation No. XXV (Gender-related dimensions of racial discrimination), in United
Nations Compilation of
General Comments, p. 195, para. 5(d).
112Ibid., p. 55, para. 50.
113See UN doc. A/CONF.157/53.
hearing violated both Zambian law and international human rights law, including
article
7(1)a) of the African Charter.114 The right to be heard, as guaranteed by article
7(1)(a),
was also violated in a case against Nigeria, in which the courts were prevented
by a
government decree from entertaining any complaints concerning a number of
decrees
regarding, inter alia, the proscription of newspapers. The African Commission on
Human and Peoples’ Rights did not accept the Government’s argument that it
was “in
the nature of military regimes” to provide for such “ouster clauses” in order to
avoid
excessive litigation. According to the Commission:
“A government that governs truly in the best interest of the people ...
should have no fears of an independent judiciary. The judiciary and the
executive branch of government should be partners in the good ordering
of society. For a government to oust the jurisdiction of the courts on a
broad scale reflects a lack of confidence in the justifiability of its own
actions, and a lack of confidence in the courts to act in accordance with the
public interest and rule of law.”115
The Commission therefore decided that the ouster of the courts’ jurisdiction
violated the right to have one’s cause heard under article 7(1) of the Charter.116
*****
Article 25 of the American Convention on Human Rights on the right to
judicial protection reads as follows:
“1. Everyone has the right to simple and prompt recourse, or any other
official duties.
2. The States Parties undertake:
(a) to ensure that any person claiming such remedy shall have his
rights determined by the competent authority provided for by
the legal system of the state;
(b) to develop the possibilities of judicial remedy; and
(c) to ensure that the competent authorities shall enforce such
Lawyers 787
114ACHPR, Amnesty International (on behalf of W. S. Banda and J. L. Chinula) v. Zambia, Communication
No. 212/98, decision adopted on
5 May 1999, paras. 60-61 of the text of the decision as published at:
31 October 1998, paras. 78 and 81 of the text of the decision as published at:
http://www1.umn.edu/humanrts/africa/comcases/105-93_128-94_130-94_152-96.html
116Ibid., para. 82.
The Inter-American Court has stated that the right to judicial protection, as
guaranteed by article 25(1), “incorporates the principle recognized in the
international
law of human rights of the effectiveness of the procedural instruments or means
designed to guarantee such rights”.117 This means, in particular, that:
“Under the Convention, States Parties have an obligation to provide
effective judicial remedies to victims of human rights violations (Art. 25),
remedies that must be substantiated in accordance with the rules of due
process of law (Art. 8(1)), all in keeping with the general obligation of such
States to guarantee the free and full exercise of the rights recognized by the
Convention to all persons subject to their jurisdiction (Art. 1).”118
According to this principle, moreover,
“the absence of an effective remedy to violations of the rights recognized
by the Convention is itself a violation of the Convention by the State Party
in which the remedy is lacking. In that sense, it should be emphasized that,
for such a remedy to exist, it is not sufficient that it be provided for by the
Constitution or by law or that it be formally recognized, but rather that it
must be truly effective in establishing whether there has been a violation of
human right and in providing redress. A remedy which provides illusory
because of the general conditions prevailing in the country, or even in the
particular circumstances of a given case, cannot be considered effective.
That could be the case, for example, when practice has shown its
ineffectiveness: when the Judicial Power lacks the necessary independence
to render impartial decisions or the means to carry out its judgments; or in
any other situation that constitutes a denial of justice, as when there is an
unjustified delay in the decision; or when, for any reason, the alleged victim
is denied access to a judicial remedy.”119
In “normal circumstances” these conclusions “are generally valid with respect
to all the rights recognized by the Convention”.120 For specific information
regarding
the requirement of effective domestic remedies in public emergencies, see
Chapter 16
of this Manual.
Article 25 of the American Convention has been interpreted by the
Inter-American Court of Human Rights in the case of Castillo-Páez v. Peru
concerning
the abduction and subsequent disappearance of Mr. Castillo-Páez. The Court
concluded “that the remedy filed by Mr. Castillo-Páez’ next-of-kin against his
detention
(habeas corpus) was obstructed by State agents through the adulteration of the
logs of
entry of detainees, which made it impossible to locate the victim”. It had
therefore been
proven “that the remedy of habeas corpus was ineffective for securing the
release of
Ernesto Rafael Castillo-Páez and, perhaps, for saving his life”.121 On this
important
issue the Court added that:
117I-A Court HR, Judicial Guarantees in States of Emergency (arts. 27(2), 25 and 8 of the American
Opinion OC-9/87, Series A, No. 9, p. 32, para. 24.
118I-A Court HR, Godinez Cruz Case, Preliminary Objections, judgment of June 26, 1987, Series C, No. 3, p.
78, para. 93.
119I-A Court HR, Judicial Guarantees in States of Emergency (arts. 27(2), 25 and 8 of the American
Opinion OC-9/87, Series A, No. 9, p. 33, para. 24.
120Ibid., pp. 33-34, para. 25.
121I-A Court HR, Castillo-Páez Case v. Peru, judgment of November 3, 1997, OAS doc. OAS/Ser.L/V/III.39,
doc. 5, 1997 Annual Report
I-A Court HR, p. 266, paras. 81-82.
“82. ... The fact that the ineffectiveness of habeas corpus was due to
forced disappearance does not exclude the violation of article 25 of the
American Convention. This provision on the right to effective recourse to
a competent national court or tribunal is one of the fundamental pillars not
only of the American Convention, but of the very rule of law in a
democratic society in the terms of the Convention.
83. Article 25 is closely linked to the general obligation contained in
article 1(1) of the American Convention, in that it assigns duties of
protection to the States Parties through their domestic legislation. The
purpose of habeas corpus is not only to guarantee personal liberty and
humane treatment, but also to prevent disappearance or failure to
determine the place of detention, and, ultimately, to ensure the right to
life.”122
In this case the Court found it proven that Mr. Castillo-Páez had been
detained by the members of the Peruvian police force, who hid him so that he
could not
be located. The ineffectiveness of the remedy of habeas corpus was therefore
“imputable
to the State” and constituted a violation of article 25 of the Convention.123
However, where the relatives of a disappeared person failed to initiate a
judicial action to try to secure the freedom of the person concerned, the Court
was
unable to find a violation of article 25, since the requirement for its application
had not
been met.124
*****
Quite importantly, article 7 of the Inter-American Convention on the
Prevention, Punishment, and Eradication of Violence against Women, also spells
out
States parties’s duties to provide help and remedies for women subjected to
violence,
for instance the establishment of “fair and effective legal procedures for women
who
have been subjected to violence which include, among others, protective
measures, a
timely hearing and effective access to such procedures” (art. 7(f)). It further
imposes an
obligation on States parties to establish “the necessary legal and administrative
mechanisms to ensure that women subjected to violence have effective access
to
restitution, reparations or other just and effective remedies” (art. 7(g)).
*****
Lastly, article 13 of the European Convention on Human Rights stipulates
that:
“Everyone whose rights and freedoms as set forth in this Convention are
violated shall have an effective remedy before a national authority
notwithstanding that the violation has been committed by persons acting
in an official capacity.”
Lawyers 789
122Ibid., pp. 266-267, paras. 82-83.
123Ibid., p. 267, para. 84.
124I-A Court HR, the Case of Blake v. Guatemala, judgment of January 24, 1998, in OAS doc.
OAS/Ser.L/V/III.43, doc. 11, 1998
Annual Report I-A Court HR, p. 100, para. 104.
This article has been interpreted on numerous occasions and violations,
particularly with regard to protection of the right to life, have been found in an
increasing number of cases. An analysis of the jurisprudence of the European
Court of
Human Rights shows that the following general principles are of relevance in the
interpretation of article 13 of the European Convention:
First, as the Court stated in the case of Boyle and Rice v. the United Kingdom,
“notwithstanding the terms of Article 13 read literally, the existence of an actual
breach
of another provision of the Convention (a ‘substantive’ provision) is not a
prerequisite
for the application of the Article [which] guarantees the availability of a remedy
at
national level to enforce – and hence to allege non-compliance with – the
substance of
the Convention rights and freedoms in whatever form they may happen to be
secured
in the domestic legal order.”125
Second, it follows that “where an individual has an arguable claim to be the
victim of a violation of the rights set forth in the Convention, he should have a
remedy
before a national authority in order both to have his claim decided and, if
appropriate,
to obtain redress.”126 This means more precisely that “the grievance must be an
arguable one in terms of the Convention”, and that a person cannot claim the
benefit of
the protection of article 13 for “any supposed grievance under the Convention ...
no
matter how unmeritorious his complaint may be”.127
Third, the Court has concluded that the authority referred to in article 13
“may not necessarily be a judicial authority but, if it is not, its powers and the
guarantees
which it affords are relevant in determining whether the remedy before it is
effective”.128
Fourth, the Court has held that “although no single remedy may itself entirely
satisfy the requirements of article 13, the aggregate of remedies provided for
under
domestic law may do so.”129
Fifth, although “the scope of the obligation under article 13 varies depending
on the nature of the applicant’s complaints under the Convention”, the remedy
required by that article “must be ‘effective’ in practice as well as in law, in
particular in
the sense that its exercise must not be unjustifiably hindered by the acts or
omissions of
the authorities of the respondent State”.130
Sixth, neither article 13 nor the Convention itself lays down the manner in
which the Contracting States should ensure “within their internal law the
effective
implementation of any of the provisions of the Convention – for example, by
incorporating the Convention into domestic law”. It therefore follows that the
application of article 13 in a given case will depend upon the manner in which
the
Contracting State concerned has chosen to discharge its obligation under article
1
125Eur. Court HR, Case of Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A, No.
131, p. 23, para. 52.
126Eur. Court HR, Case of Silver and Others, judgment of 25 March 1983, Series A, No. 61, p. 42, para.
113(a); emphasis added.
127Eur. Court HR, Case of Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A, No.
131, p. 23, para. 52.
128Eur. Court HR, Case of Silver and Others, judgment of 25 March 1983, Series A, No. 61, p. 42, para.
113(b), p. 42, para. 113(b).
129Ibid., p. 42, para. 113(c).
130Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of 28 March 2000, para. 124 of the text
published at: http://echr.coe.int/.
directly to secure to everyone within its jurisdiction the rights and freedoms set
out in
the Convention and its Protocols.131
Lastly, it follows from the preceding principle that article 13 does not
guarantee “a remedy allowing a Contracting State’s law as such to be challenged
before
a national authority on the ground of being contrary to the Convention or
equivalent
domestic legal norms”.132
However, the question of remedies may be examined not only within the
framework of article 13 of the Convention but also under other articles, such as
articles
6 and 8. If, for instance, the Court has found a violation of article 6(1) as a
consequence
of lack of access to the courts, it will not, in principle, find it necessary to
examine the
matter also under article 13, since “the requirements of that provision are less
strict
than, and are ... absorbed by, those of Article 6, para. 1".133 In the case of X and
Y v. the
Netherlands, the Court likewise did not consider it necessary to examine the
question of
remedies under article 13, since it had already concluded that article 8 of the
Convention had been violated, inter alia, by the fact that no “adequate means of
obtaining a remedy” was available to one of the applicants.134
Conversely, if the requirements under other articles, such as article 2, are less
strict than article 13, the Court will pursue its examination of grievances also
under the
latter article. For instance, it found a violation of article 13 after concluding that
the lack
of an effective investigation into the death of a person constituted a violation of
article
2 of the Convention.135 The reason was that the requirements of article 13 “are
broader
than the obligation to investigate” imposed by article 2.136 In this case the Court
stated
that:
“Given the fundamental importance of the right to protection of life,
Article 13 requires, in addition to the payment of compensation where
appropriate, a thorough and effective investigation capable of leading to
the identification and punishment of those responsible for the deprivation
of life and including effective access for the complainant to the
investigation procedure.”137
As such an effective investigation was not conducted into the circumstances
of the death of the applicant’s brother, the applicant had no effective remedy in
respect
of his brother’s death as required by article 13, which had therefore been
violated.138
Lawyers 791
131Eur. Court HR, Case of Silver and Others, judgment of 25 March 1983, Series A, No. 61, p.. 42, para.
113(d).
132Eur. Court HR, Case of James and Others, judgment of 21 February 1986, Series A, No. 98, p. 47, para.
85.
133Eur. Court HR, Case of Hentrich v. France, judgment of 22 September 1994, Series A, No. 296-A, p. 24,
para. 65 and, similarly, Eur.
Court HR, Case of Pudas v. Sweden, judgment of 27 October 1987, Series A, No. 125-A, p. 17, para. 43.
134Eur. Court HR, Case of Y and Y v. the Netherlands, judgment of 26 March 1985, Series A, No. 91, p. 15,
para. 36.
135Among several cases see, for example, Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of 28
March 2000, para. 126.
136Ibid., loc. cit.
138Ibid., para. 126. For cases involving a violation of article 13 relating to the right to life or freedom from
torture, see also Eur.
Court HR, Case of Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, pp. 2286-2287, paras.
95-100, and Eur. Court HR, Case
of Avsar v. Turkey, judgment of 10 July 2001, paras. 421-431; for the text of the decision see
http://echr.coe.int
The legal duty under international law to provide effective human rights
protection comprises the obligation to ensure that effective domestic
remedies are available to victims of human rights violations.
This means that it is not sufficient for a remedy to be available under a
country’s constitution or other legislation. It must exist in practice and be
allowed to function freely.
To be able to provide effective remedies, the authorities concerned,
including the courts and the legal professions in general, must therefore
be
competent, independent and impartial.
States should endeavour to develop judicial remedies for alleged
violations of human rights.
In order to be effective, the exercise of a remedy must not be hindered by
acts or omissions of the State concerned.
While effective remedies must exist for all violations of human rights,
their prompt and unhindered exercise is particularly important in the case
of grievances suffered by persons deprived of their liberty, whose life and
personal health and security must be protected at all times.
To deprive a detained person of his or her right to bring complaints
regarding, for example, unlawful deprivation of liberty or torture or other
forms of ill-treatment amounts to placing the person concerned in a legal
vacuum where he or she has no possibility of redress. Such a situation is a
manifest violation of a State’s legal obligations under international
human rights law.
Effective domestic remedies must also be ensured for complaints of
discrimination such as alleged racial and gender-based discrimination,
including acts of violence arising either in the domestic or in the public
sphere.
It is the professional responsibility of all judges, prosecutors and lawyers
to ensure that claims of human rights violations are addressed effectively
and with due diligence.
3.5 The duty to investigate, prosecute and punish
As previously noted, the duty to investigate, prosecute and punish human
rights violations is also inherent in States’ general responsibility to ensure
effective
human rights protection and it is a duty that has been consistently emphasized
by the
international monitoring bodies. As this duty is not always expressly defined in
the
treaties concerned, it will be analysed below principally in the light of a selection
of the
many comments and judgments of these bodies that invoke the obligation to
investigate, prosecute and punish violations of the rights and freedoms of the
individual.
In General Comment No. 20 on article 7 of the International Covenant on
Civil and Political Rights, the Committee noted, in general, “that it is not
sufficient for
the implementation of article 7 to prohibit such treatment or to make it a crime.
States
parties should inform the Committee of the legislative, administrative, judicial
and
other measures that they take to prevent and punish acts of torture and cruel,
inhuman
and degrading treatment in any territory under their jurisdiction.”139
In the Chongwe case, a Zambian police officer had shot “and barely missed
killing” the author who was not formally deprived of his liberty. According to the
Human Rights Committee, the State party “refused to carry out independent
investigations, and the investigations initiated by the Zambian police [had] still
not been
concluded and made public, more than three years after the incident”.140
Furthermore,
no criminal proceedings had been initiated and the author’s claim for
compensation
appeared to have been rejected. The author’s right to security under article 9(1)
of the
Covenant had therefore been violated.141
With regard to Zambia’s obligations under article 2(3)(a) of the Covenant, the
Committee concluded that:
“the State party is under the obligation to provide Mr Chongwe with an
effective remedy and to take adequate measures to protect his personal
security and life from threats of any kind. The Committee urges the State
party to carry out independent investigations of the shooting incident, and
to expedite criminal proceedings against the persons responsible for the
shooting. If the outcome of the criminal proceedings reveals that persons
acting in an official capacity were responsible for the shooting and hurting
of the author, the remedy should include damages to Mr Chongwe. The
State party is under an obligation to ensure that similar violations do not
occur in the future.”142
The Human Rights Committee also expressed concern “at the lack of action”
by Venezuela to deal with disappearances that occurred in 1989, noting that the
statement to the effect that investigations of the disappearances were “being
pursued”
was unsatisfactory.143 “Taking into account the provisions of articles 6, 7 and 9 of
the
Covenant, the State party should give special priority to rapid and effective
investigations designed to determine the whereabouts of the disappeared
persons and
those responsible for disappearances. The State party should also take all
necessary
measures to prevent disappearances, including adoption of the legislation
described in
article 45 of the Constitution.”144 The Committee was also “gravely concerned at
the
many reports of extrajudicial executions” in Venezuela and the failure of the
State party
to deal with them. “The State party should conduct investigations to identify
those
Lawyers 793
140Communication No. 821/1998, R. Chongwe v. Zambia, (Views adopted on 25 October 2000), in UN doc.
GAOR, A/56/40
(vol. II), p. 142, para. 5.3.
141Ibid., loc. cit.
142Ibid., p. 143, para. 7.
144Ibid., loc. cit.
responsible for extrajudicial executions and bring them to justice. It should also
take the
necessary measures to prevent the occurrence of such violations of article 6 of
the
Covenant.”145
Similarly, the Committee expressed concern about reports of extrajudicial
executions of prisoners in the Dominican Republic “and of deaths at the hands of
the
National Police, the Armed Forces and the National Drug Control Office owing to
the
excessive use of force and the apparent impunity that they enjoy”. The State
party
should therefore
“take urgent steps to ensure respect for article 6 of the Covenant, to have
those responsible for violations of the right to life guaranteed thereunder
prosecuted and punished, and to make redress”.146
The Committee also noted with concern that torture was widespread in the
Dominican Republic and that “no independent body exists to investigate the
many
complaints of torture and cruel, inhuman or degrading treatment . . . The State
party
should take prompt action to comply fully with article 7 of the Covenant and to
have
violations thereof investigated so that the culprits may be tried and punished by
ordinary courts and redress provided.”147
Commenting on the Amnesty Law passed in Argentina to grant immunity for
human rights violations committed during the military regime, the Committee
recommended that gross violations of civil and political rights during that regime
“should be prosecutable for as long as necessary, with applicability as far back in
time as
necessary, to bring to justice their perpetrators” (see further infra subsection
3.7.1).148
*****
Treatment or Punishment contains specifically defined State obligations relating
to the
penalization of acts of torture and to investigations and complaints procedures.
Pursuant to article 4(1) of the Convention, States parties are required to ensure
that all
acts of torture, attempts to commit torture, as well as complicity or participation
in
torture, are offences under their criminal law. Article 4(2) stipulates that the
States
parties “shall make these offences punishable by appropriate penalties which
take into
account their grave nature”. And article 12 of the Convention states that:
“Each State Party shall ensure that its competent authorities proceed to a
prompt and impartial investigation, wherever there is reasonable ground to
believe that an act of torture has been committed in any territory under its
jurisdiction.”
Lastly, as already noted supra in subsection 3.4.1, article 13 obliges States
parties to provide victims of torture with the right to bring complaints and to
have their
cases “promptly and impartially” examined by the competent authorities.
145Ibid., pp. 49-50, para. 7.
146Ibid., p. 55, para. 8.
147Ibid., pp. 55-56, para. 9.
In connection with its examination of the third periodic report of Belarus, the
Committee against Torture expressed concern about the “pattern of failure of
officials
to conduct prompt, impartial and full investigations into the many allegations of
torture
reported to the authorities, as well as a failure to prosecute alleged perpetrators,
which
are not in conformity with articles 12 and 13 of the Convention”.149 The
Committee
therefore recommended that:
_ “Urgent and effective steps be taken to establish a fully independent
complaints
mechanism, to ensure prompt, impartial and full investigations into the many
allegations of torture reported to the authorities and the prosecution and
punishment, as appropriate, of the alleged perpetrators”;
_ “The State party consider establishing an independent and impartial
governmental
and non-governmental national human rights commission with effective powers
to,
inter alia, promote human rights and investigate all complaints of human rights
violations, in particular those pertaining to the implementation of the
Convention.”150
Another of the many similar examples from the proceedings of the
Committee against Torture relates to Guatemala, in respect of which the
Committee
expressed concern at “the continuing existence of impunity for offences in
general and
for human rights violations in particular, as a result of repeated dereliction of
duty by
the government bodies responsible for preventing, investigating and punishing
such
offences”. It also expressed concern about the “lack of an independent
commission
with wide powers and extensive resources to investigate the circumstances of
the
kidnapping of disappeared persons on a case-by-case basis and to locate their
remains.
Uncertainty about these circumstances causes the families of disappeared
persons
serious and continuous suffering.”151 The Committee recommended that:
“An independent commission should be established to investigate the
circumstances of the kidnapping of disappeared persons and to determine
what happened to them and where their remains are located. The
Government has an obligation to spare no effort to find out what really
happened in such cases and thus give effect to the legitimate right of the
families concerned, provide compensation for the loss or injury caused and
prosecute the persons responsible.”152
Lastly, when examining the initial report of Bolivia, the Committee
recommended that the Government adopt “the necessary measures to ensure
effective
compliance by government procurators with their duty to conduct criminal
investigations into any complaint of torture and cruel, inhuman or degrading
treatment
in a prompt and impartial manner; during these investigations, the accused
officials
should be suspended from their duties.”153 It was recommended that the State
party
Lawyers 795
149UN doc. GAOR, A/56/44, p. 21, para. 45(e).
150Ibid., p. 21, para. 46(b) and (c).
151Ibid., p. 33, para. 73(b) and (e).
152Ibid., p. 35, para. 76(e).
153Ibid., p. 42, para. 97(d).
“set up a centralized public register of complaints of torture and ill-treatment
and of the
results of the investigations”.154
*****
Article 2(b) and (c) of the Convention on the Elimination of All Forms of
Discrimination against Women requires the States parties “to adopt appropriate
legislative and other measures, including sanctions where appropriate,
prohibiting all
discrimination against women” and “to establish legal protection of the rights of
women on an equal basis with men and to ensure through competent national
tribunals
and other public institutions the effective protection of women against any act of
discrimination”. Although these provisions are applicable to all forms of gender-
based
discrimination, they assume special importance in the case of all forms of
violence
against and abuse of women.
On this issue the Committee on the Elimination of Discrimination against
Women recommends that the States parties to the Convention take
“Effective legal measures, including penal sanctions, civil remedies
compensatory provisions to protect women against all kinds of violence,
including, inter alia, violence and abuse in the family, sexual assault and
sexual harassment in the workplace”.155
Commenting on the situation in the Republic of Moldova, the Committee
emphasized that violence against women, “including domestic violence,
constitutes a
violation of the human rights of women under the Convention”. It called on the
Government “to ensure that such violence constitutes a crime punishable under
criminal law, that it is prosecuted and punished with the required severity and
speed”.156
It urged Uzbekistan to ensure that women and girls who are victims of violence,
including domestic violence, “have immediate means of redress and
protection”.157
The Inter-American Court of Human Rights held in the Street Children case
that it is clear from article 1(1) of the American Convention on Human Rights
“that the
State is obliged to investigate and punish any violation of the rights embodied in
the
Convention in order to guarantee such rights”.158 In the earlier Velásquez
Rodríguez case,
the Court had set forth at some length its views on States parties’ duty to
investigate
human rights violations, which in that case involved the abduction and
subsequent
disappearance of Mr. Velásquez. The Court held that:
154Ibid., p. 43, para. 97(e).
155General Recommendation No. 19 (Violence against women) United Nations Compilation of General
Comments, p. 221,
para. 24(t)(i).
156UN doc. GAOR A/55/38, p. 59, para. 102.
1999, Series C, No. 63, pp. 194-195,
para. 225.
“176. The State is obligated to investigate every situation involving a
violation of the rights protected by the Convention. If the State apparatus
acts in such a way that the violation goes unpunished and the victims’ full
enjoyment of such rights is not restored as soon as possible, the State has
failed to comply with its duty to ensure the free and full exercise of those
rights to the persons within its jurisdiction. The same is true when the State
allows private persons or groups to act freely and with impunity to the
detriment of the rights recognized by the Convention.
177. In certain circumstances, it may be difficult to investigate acts that
violate an individual’s rights. The duty to investigate, like the duty to
prevent, is not breached merely because the investigation does not produce
a satisfactory result. Nevertheless, it must be undertaken in a serious
manner and not as amere formality preordained to be ineffective. An
investigation must have an objective and be assumed by the State as
its own legal duty, not as a step taken by private interests that
depends upon the initiative of the victim or his family or upon their
offer of proof, without an effective search for the truth by the
government. This is true regardless of what agent is eventually found
responsible for the violation. Where the acts of private parties that violate
the Convention are not seriously investigated, those parties are aided in a
sense by the government, thereby making the State responsible on the
international plane.”159
In the same case, the Court concluded that the procedures available in
Honduras were “theoretically adequate” but that the evidence showed “a
complete
inability” of the procedures to carry out an investigation into the disappearance
of
Manfredo Velásquez and to fulfil the State’s duty to pay compensation and
punish
those responsible, as set out in article 1(1) of the Convention.160 For instance, the
courts
did not process one single writ of habeas corpus, no judge had access to the
places of
detention where Mr. Velásquez might have been held, and the criminal complaint
was
dismissed.161 The Court also pointed out that “the duty to investigate facts of this
type
continues as long as there is uncertainty about the fate of the person
who has
disappeared”.162
In the Velásquez case, the Court unanimously decided that Honduras had
violated articles 4, 5 and 7 read in conjunction with article 1(1) of the
Convention.163
Although a Government may conduct various judicial proceedings relating to
the facts, it may still be in violation of its duty under article 1(1) of the American
Convention to investigate crime. This was the situation in the Street Children
case, in
which the persons responsible for the abduction and killing of the children had
not
been punished because they had “not been identified or penalized by judicial
decisions
Lawyers 797
159I-A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1988, Series C, No. 4, pp. 155-156, paras.
176-177; emphasis added.
160Ibid., p. 156, para. 178.
161Ibid., p. 156, para. 179.
163Ibid., pp. 162-163.
that [had] been executed”. This consideration alone was sufficient for the Court
to
conclude that Guatemala had violated article 1(1) of the Convention.164
*****
The duty to investigate, prosecute and punish human rights violations is, of
course, equally valid for the Contracting States to the European Convention on
Human
Rights. In numerous cases, for example, the European Court of Human Rights
has
emphasized the obligation to investigate in relation to the right to life. Its
jurisprudence
on this important issue was well summarized in the Avsar case, in which it held:
“393. The obligation to protect the right to life under article 2 of the
Convention, read in conjunction with the State’s general duty under article
1 of the Convention to ‘secure to everyone within (its) jurisdiction the
rights and freedoms defined in (the) Convention’, also requires by
implication that there should be some form of effective official
investigation when individuals have been killed as a result of the use of
force ... The essential purpose of such investigation is to secure the
effective implementation of the domestic laws which protect the right to
life and, in those cases involving state agents and bodies, to ensure their
accountability for deaths occurring under their responsibility. What form
of investigation will achieve those purposes may vary in different
circumstances. However, whatever mode is employed, the authorities must
act of their own motion, once the matter has come to their attention. They
cannot leave it to the initiative of the next of kin either to lodge formal
complaint or to take responsibility for the conduct of any investigatory
procedures ...
394. For an investigation into alleged unlawful killing by state agents to be
effective, it may generally be regarded as necessary for the persons
responsible for and carrying out the investigation to be independent from
those implicated in the events ... The investigation must also be effective in
the sense that it is capable of leading to a determination of whether the
force used in such cases was or was not justified in the circumstances ... and
to the identification and punishment of those responsible ... This is not an
obligation of result, but of means. The authorities must have taken the
reasonable steps available to them to secure the evidence concerning the
incident, including inter alia eye witness testimony, forensic evidence, and
where appropriate, an autopsy which provides a complete and accurate
record of injury and an objective analysis of clinical findings, including the
cause of death ... Any deficiency in the investigation which undermines its
ability to establish the cause of death or the person responsible will risk
falling foul of this standard.
395. There must also be a requirement of promptness and reasonable
expedition implicit in this context ... It must be accepted that there may be
obstacles or difficulties which prevent progress in an investigation in a
particular situation. However, a prompt response by the authorities in
investigating a use of lethal force may generally be regarded as essential in
1999, Series C, No. 63, p. 195,
para. 228.
maintaining public confidence in their maintenance of the rule of law and
in preventing any appearance of collusion in or tolerance of unlawful
acts.”165
Moreover, as pointed out by the Court in the Avsar case, in which unlawful
killings were allegedly “carried out under the auspices of the security forces with
the
knowledge and acquiescence of the State authorities”, the situation raised
“serious
concerns about the State’s compliance with the rule of law and its respect in
particular
for the right to life”. It followed that, in such circumstances, the procedural
obligation
under article 2 of the European Convention with regard to the right to life “must
be
regarded as requiring a wider examination”.166
In this case, the victim had been taken from his house by seven persons,
namely village guards,MM(the person who confessed) and one security guard. He
was
taken to the gendarmerie from where he was later removed and killed. The Court
concluded that article 2 of the Convention had been violated because “the
investigation
by the gendarmes, public prosecutor and before the criminal court did not
provide a
prompt or adequate investigation of the circumstances surrounding the killing of
Mehmet Serif Avsat”. There had therefore been a “breach of the State’s
procedural
obligation to protect the right to life”.167 The Court concluded, moreover, that
the
Government was responsible for Mr. Avsat’s death, a finding that resulted in a
violation
of its substantive obligation to ensure the right to life under article 2 of the
European
Convention.168 It is noteworthy that the village guards and the confessor were
prosecuted and convicted in this case but not the seventh person, the security
official.
These circumstances “rendered recourse to civil remedies ... ineffective in the
circumstances [and] did not provide sufficient redress for the applicant’s
complaints
concerning the authorities’ responsibility for his brother’s death”. He could
therefore
continue to claim to be a victim of a violation of article 2 on behalf of his
brother.169
3.5.3 The role of victims during investigations and court proceedings
The role of victims or their next-of-kin is essential during investigations into,
and court proceedings regarding, human rights violations, and is of course
particularly
important in inquiries into killings, torture and other forms of violence, including
gender-based violence, whether committed by private persons or State officials.
Judges,
prosecutors and lawyers must therefore at all times ensure that the affected
persons are
heard at all appropriate times during the investigations, as well as in connection
with
any ensuing court proceedings. They must also be particularly sensitive and
understanding in cases concerning, for instance, disappearances. The trauma
felt by the
family members of disappeared persons is profound. Their anguish at not
knowing the
fate of their beloved ones is deep and has a marked and lasting impact on their
lives.
The legal professions should therefore show courtesy and understanding for the
Lawyers 799
165Eur. Court HR, Case of Avsar v. Turkey, judgment of 10 July 2001, paras. 393-395 of the decision as
published at:
http://echr.coe.int
feelings and reactions of persons facing such human tragedy and their need to
know
what happened to their disappeared family members.
In the Street Children case, the Inter-American Court of Human Rights
emphasized with regard to the duty to investigate that
“it is evident from article 8 of the (American) Convention (on Human
Rights) that the victims of human rights violations or their next of kin
should have substantial possibilities of being heard and acting in the
respective proceedings, both in order to clarify the facts and punish those
responsible, and to seek due reparation.”170
Failure to process private denunciations, writs of habeas corupus or civil and
other claims, and failure to initiate investigations into alleged human rights
violations
and, whenever appropriate, to bring criminal or other proceedings against those
responsible for them clearly make it impossible for the victims or their next-of-
kin “to
be heard and to have their accusations discussed by an independent and
impartial
tribunal”.171 Such failure undermines not only the victim’s right to an effective
remedy
but also the confidence that individuals and the public at large should have in
their
justice system and in the rule of law in general.
Inherent in the general duty to provide effective protection for human
rights is the specific legal duty to investigate, prosecute and
punish violations of the individual’s fundamental rights and freedoms.
The ultimate purpose of this duty is to ensure the swift restoration of the
victim’s rights and freedoms
To fulfil their duty, States must conduct prompt and effective
investigations into all alleged violations of human rights. This duty is of
particular importance when the allegations concern the right to life and
the right not to be subjected to torture or other forms of ill-treatment,
including gender-based violence as well as violence originating in other
forms of discrimination.
The duty to investigate is one of means and not of ends and it implies
inter alia that:
_ the investigation must be carried out by an independent body, namely
by a body other than that implicated in the alleged violations;
_ the investigation must be carried out impartially, speedily, fully and
effectively so as to facilitate the identification of the person or persons
responsible for the alleged human rights violations for the purpose of
their subsequent prosecution and eventual punishment;
1999, Series C, No. 63, p. 195,
para. 227.
171Ibid., p. 196, para. 229.
_ the investigation must be initiated by the State once it has knowledge
of the alleged facts, and it does not therefore depend on steps taken, or
proof tendered, by the victim or his or her next-of-kin;
_ formal investigations not intended to establish the truth fall foul of the
duty to investigate human rights violations effectively;
_ examples of steps necessary to ensure the effective investigation of
alleged arbitrary killings are the taking of eyewitness testimony and
forensic evidence and an autopsy involving an objective analysis of the
clinical findings, including the cause of death;
_ in the case of grave human rights violations, such as disappearances,
the duty to investigate and prosecute lasts for as long as it takes to
dispel uncertainty about what happened to the victims.
The victim of human rights violations or his or her next-of-kin plays an
essential role in investigations and during court proceedings relating to
the
violation concerned. He or she should have ample opportunity to be heard
and to play an active part in the criminal justice process.
Judges, prosecutors and lawyers must show courtesy to and understanding
for victims of human rights violations and must be particularly sensitive
to the trauma caused by disappearances and other serious human rights
abuses.
The failure to investigate human rights violations promptly and effectively
jeopardizes the victim’s right to redress for his or her grievances and
undermines the rule of law, including public confidence in the rule of law.
3.6 The duty to provide redress for human rights
violations
3.6.1 Restitution and compensation
In most cases, the international human rights treaties do not specify how a
breach of a legal obligation should be remedied. In a sense, this is logical
inasmuch as
the States parties to a human rights treaty are free to decide how to enforce the
rights
and freedoms concerned. However, article 14(1) of the Convention against
Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment specifies that
States
parties have a duty to ensure that victims of torture obtain redress and that they
have
“an enforceable right to fair and adequate compensation, including the means
for as full
rehabilitation as possible”. In the event of the death of the victim as a result of
the
torture, his or her dependants “shall be entitled to compensation”. As previously
noted,
article 7 of the Inter-American Convention on the Prevention, Punishment, and
Eradication of Violence against Women also imposes a duty on States parties to
establish, inter alia, “the necessary legal and administrative mechanisms to
ensure that
women subjected to violence have effective access to restitution, reparations or
other
just and effective remedies”.
Lawyers 801
As in the case of victims of ordinary crime, victims of human rights violations
should, to the extent possible, have their rights restituted. In the Blazek case,
which
concerned the confiscation of property in the Czech Republic, the Human Rights
Committee expressed the view that, pursuant to article 2(3)(a) of the
International
Covenant on Civil and Political Rights, the State party was “under an obligation
to
provide the authors with an effective remedy, including an opportunity to file a
new
claim for restitution or compensation” for an act of discrimination contrary to
article 26
of the Covenant.172 In this case, which concerned property, restitution may thus
be
possible. However, as made abundantly clear in the present chapter, this is often
not the
case, especially where the persons concerned have been killed or subjected to
violence
and the options are limited, by and large, to compensation and rehabilitation.
The examples selected below will illustrate how the regional human rights
courts deal with the question of compensation. However, it should be pointed out
that
the obligation to indemnify is derived in these cases from an international
obligation
linked to a proven violation of an international human rights treaty and is thus
not
based in national law.173 On the other hand, the judgments concerned help to
clarify the
kinds of damage that may be compensated, although the actual compensation
will
always depend on the facts of the case.
The European Court of Human Rights has regularly awarded compensation,
inter alia to victims of torture and to the next-of-kin of victims of killings.
Depending
on the circumstances, compensation may be granted for pecuniary damage
and also
for non-pecuniary or moral damage which cannot be considered to be
compensated
by the sole findings of the international monitoring body concerned.174 Such
compensation may be granted not only to the victim himself or herself but also
to the
victim’s next-of-kin.175 Compensation for costs and expenses may also be
awarded.176
However, in a case in which the next-of-kin was not dependent on his brother’s
earnings prior to his death and the claims related to alleged losses incurred
subsequent
to his death, the Court did not “find it appropriate” to award compensation for
pecuniary damages.177
*****
At the American level, the question of what would constitute “fair
compensation” to Mr. Velásquez’s next-of-kin arose in the Velásquez Rodríquez
case.
The Inter-American Court concluded that, since the disappearance of Mr.
Velásquez
was not an accidental death but “the result of serious acts imputable to
Honduras”, the
amount of compensation could not “be based upon guidelines such as life
insurance,
172Communication No. 857/1999, Blazek et al. v. the Czech Republic (Views adopted on 12 July 2001), in UN
doc. GAOR, A/56/40
(vol. II), p. 173, para. 7.
173Cf. I-A Court HR, Velásquez Rodríguez Case, Compensatory damages, judgment of July 21, 1989, Series
C, No. 7, p. 57, para. 54.
174See, for example, among numerous cases: Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of
28 March 2000, paras.
133-139 of the text as published as at http://echr.coe.int and Eur. Court HR, Case of Price v. the United
Kingdom, judgment of 19 June 2001,
para. 34 of the text as published as at http://echr.coe.int
175Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of 28 March 2000, paras. 133-139 of the text
as published at
http://echr.coe.int
176Ibid., paras. 140-142.
but must be calculated as a loss of earnings based upon the income the victim
would
have received up to the time of his possible natural death”.178 However, the
Court
distinguished between two situations: on the one hand, the situation of a victim
who
was “totally and permanently disabled”, in which case “the compensation should
include all he failed to receive, together with appropriate adjustments based
upon his
probable life expectancy”,179 and, on the other, a situation in which the
beneficiaries are
family members who have, in principle, “an actual or future possibility of working
or
receiving income on their own”.180 In the latter situation it would not be correct
“to
adhere to rigid criteria ... but rather to arrive at a prudent estimate of the
damages, given
the circumstances of the case”.181
On the question of indemnification of the moral damages suffered by Mr.
Velásquez’s family members, the Court found that these damages were
“primarily the
result of the psychological impact suffered by the family”, especially as a result
of “the
dramatic characteristics of the involuntary disappearance of persons”.182 The
moral
damages were demonstrated by “expert documentary evidence” and the
testimony of a
psychiatrist and professor of psychology. On that basis, the Court found that the
disappearance of Mr. Velásquez “produced harmful psychological impacts among
his
immediate family which should be indemnified as moral damages”.183 The
Government was therefore ordered to pay compensation.
*****
As the status of the universal monitoring bodies is not strictly judicial, they
have no competence, as such, to award compensation for damages. In the Views
it
adopts under the Optional Protocol to the International Covenant on Civil and
Political Rights, the Human Rights Committee is therefore limited to urging
Governments responsible for human rights violations, in general terms, to pay
compensation for the wrongs suffered without specifying the amount to be
paid.184
3.6.2 Rehabilitation
In many cases, such as when a person has been the victim of torture or other
forms of ill-treatment or gender-based violence, there may be a need, in addition
to
financial compensation, for rehabilitative measures of both a physical and
psychological nature. As noted in the preceding subsection, article 14(1) of the
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment explicitly imposes a duty on States parties to provide redress for
torture
victims “including the means for as full rehabilitation as possible”.
Lawyers 803
178I-A Court HR, Velásquez Rodríguez Case, Compensatory damages, judgment of July 21, 1989, Series C,
No. 7, p. 54, para. 46.
179Ibid., pp. 54-55, para. 47.
180Ibid., p. 55, para. 48.
181Ibid., loc. cit.
182Ibid., p. 55, para. 50.
183Ibid., p. 56, para. 51.
184See, for example, Communication No. 107/1981, Quinteros v. Uruguay (Views adopted on 21 July 1983),
in UN doc. GAOR,
A/38/40, p. 224, para. 16.
The Committee against Torture expressed concern, with regard to Cameroon,
at the “absence of legislative provisions for the compensation and rehabilitation
of
victims of torture, contrary to the provisions of article 14 of the Convention”. It
therefore recommended that the State party introduce “a mechanism into its
legislation
for the fullest possible compensation and rehabilitation of the victims of
torture”.185
The Committee also recommended, with regard to Brazil, that measures should
be
taken “to regulate and institutionalize the right of victims of torture to fair and
adequate
compensation payable by the State, and to establish programmes for their fullest
possible physical and mental rehabilitation”.186
Rehabilitation for victims of abuse is also foreseen by article 39 of the
Convention on the Rights of the Child, according to which
“States Parties shall take all appropriate measures to promote physical and
psychological recovery and social integration of a child victim of: any form
of neglect, exploitation, or abuse; torture or any other form of cruel,
inhuman or degrading treatment or punishment; or armed conflicts. Such
recovery and reintegration shall take place in an environment which fosters
the health, self-respect and dignity of the child.”
On the basis of this article, the Committee on the Rights of the Child
recommended that the former Yugoslav Republic of Macedonia “urgently
establish
appropriate programmes to provide for the physical and psychological recovery
and
reintegration” of children who have been victims of crime.187 The Committee
emphasized that rehabilitative measures for children are particularly important
in times
of war.188
Women who have been subjected to trafficking constitute another group of
victims of human rights violations who may need rehabilitation. The Human
Rights
Committee recommended that Venezuela should set up rehabilitation
programmes for
victims of trafficking.189 The Committee on the Elimination of Discrimination
against
Women has also recommended that States take “protective measures, including
refuges, counselling, rehabilitation and support services for women who are the
victims
of violence or who are at risk of violence”.190
*****
At the regional level, the need for rehabilitative measures for women
subjected to violence is recognized in article 8 of the Inter-American Convention
on
the Prevention, Punishment, and Eradication of Violence against Women, under
which
the States Parties “agree to undertake progressively specific measures ... to
provide
women who are subjected to violence access to effective readjustment and
training
programmes to enable them to fully participate in public, private and social life”.
185UN doc. GAOR, A/56/44, p. 29, para. 65(e), and p. 30, para. 66(a).
186Ibid., p. 51, para. 120(f).
187UN doc. CRC/C/94, Committee on the Rights of the Child: Report on the twenty-third session (2000),
paras. 286-287.
188Ibid., see with regard to Sierra Leone, paras. 185-190.
190General Recommendation No. 19 (Violence against women), in United Nations Compilation of General
Comments, p. 221,
para. 24(t)(iii).
Victims of human rights violations, or their next-of-kin, have the right to
effective redress for wrongs committed.
Wherever possible, such redress should be in the form of restitution of
rights. If restitution is not possible, fair compensation for pecuniary
and/or moral damages must be awarded.
Redress in the form of rehabilitation should be envisaged, when
necessary,
for victims of violence, such as torture or other forms of ill-treatment or
racial, gender-based or other forms of discrimination.
3.7 The problem of impunity for human rights
violations
3.7.1 Impunity from a legal perspective
Impunity for human rights violations is one of the most serious threats to the
full enjoyment of the rights and freedoms of the individual, and constitutes a
violation
of a State’s legal duty to ensure the effective protection of these rights and
freedoms.
Non-prosecution of criminal acts such as torture, abduction, disappearances and
the
arbitrary taking of human life have a particularly devastating impact on the
victims and
their next-of-kin, as well as on society as a whole. A culture of impunity also
“widens a
gap between those close to the power structures and others, who are vulnerable
to
human rights abuses. The increasing difficulties in securing justice drive people
to take
the law into their own hands, resulting in a further deterioration of the justice
system
and new outbursts of violence.”191 Impunity for human rights violations can exist
in any
country, but it is particularly common where amnesty laws are adopted in the
aftermath
of military or civilian dictatorships or internal armed conflicts, such laws being an
allegedly indispensable element in the process of national reconciliation.
The international monitoring bodies have consistently denounced impunity
for serious human rights violations. In the Rodríguez case, for instance, the
Human
Rights Committee concluded that the 1986 Uruguay law No. 15,848, the
Limitations
Act or Law of Expiry (Ley de Caducidad de la Pretensión Punitiva del Estado)
violated
article 7 read in conjunction with article 2(3) of the International Covenant on
Civil and
Political Rights. This law, which was adopted in 1986, ended the possibility of
bringing
judicial proceedings against the State for alleged human rights violations during
the
years of military rule. The author of the communication had been detained and
tortured
in 1983 during the military dictatorship but, owing to the amnesty law, was
unable to
sue the State for compensation. In its Views, the Committee reaffirmed its
position
“that amnesties for gross violations of human rights and legislation such as
No. 15,848, Ley de Caducidad de la Pretensión Punitiva del Estado, are
incompatible with the obligations of the State party under the Covenant.
The Committee notes with deep concern that the adoption of this law
Lawyers 805
191See UN doc. E/CN.4/2000/3, Extrajudicial, summary or arbitrary executions, Report of the Special
Rapporteur, Ms. Asma
Jahangir, p. 30, para. 87.
effectively excludes in a number of cases the possibility of investigation
into past human rights abuses and thereby prevents the State party from
discharging its responsibility to provide effective remedies to the victims of
those abuses. Moreover, the Committee is concerned that, in adopting this
law, the State party has contributed to an atmosphere of impunity which
may undermine the democratic order and give rise to further grave human
rights violations.”192
With regard to Argentina, the Committee expressed concern “at the
atmosphere of impunity for those responsible for gross human rights violations
under
military rule”. Noting that many persons covered by the Argentine amnesty laws
continued “to serve in the military or in public office, with some having enjoyed
promotions on the ensuing years”, the Committee recommended that:
“Gross violations of civil and political rights during military rule should be
prosecutable for as long as necessary, with applicability as far back in time
as necessary, to bring to justice their perpetrators. The Committee
recommends that rigorous efforts continue to be made in this area, and
that measures be taken to ensure that persons involved in gross human
rights violations are removed from military or public service”.193
The Committee also expressed concern about the Croatian Amnesty Law.
Although this law does not grant amnesty to those guilty of war crimes, it fails to
define
such crimes. The Committee therefore recommended that the State party
“should
ensure that in practice the Amnesty Law is not applied or utilized for granting
impunity
to persons accused of serious human rights violations”.194
*****
The Committee against Torture expressed concern about the continuing
existence in Guatemala
“of impunity for offences in general and for human rights violations in
particular, as a result of repeated dereliction of duty by the government
bodies responsible for preventing, investigating and punishing such
offences. Impunity exists for most of the violations committed during the
internal armed conflict and those committed after the Peace Agreements
were signed.”195
In order to improve the situation, the Committee made various
recommendations to the State party involving, inter alia, the strengthening of
the
autonomy and independence of the judiciary and the Public Prosecutor’s Office
and
the prohibition of involvement of the army in public security and crime
prevention.196
*****
192Communication No. 322/1988, H Rodríguez v. Uruguay (Views adopted on 19 July 1994), in UN doc.
GAOR, A/49/40
(vol. II), p. 10, para. 12.4.
194Ibid., p. 67, para. 11.
196Ibid, see pp. 34-35, paras. 74-76.
The Committee on the Elimination of Racial Discrimination noted the efforts
made by Rwanda “to prevent impunity for perpetrators of genocide and other
human
rights violations and to bring those most responsible for such acts to justice”.
The
Committee remained concerned, however, that impunity prevailed in the country
“notably in some cases involving unlawful acts committed by members of the
security
forces”. It therefore urged the State party “to make additional efforts to respond
adequately to and prevent unlawful acts committed by members of the military
or
civilian authorities”.197
*****
It is further clear from regional jurisprudence that impunity cannot be
allowed for human rights violations committed by private persons. The
duty of
States to investigate, prosecute, punish and redress human rights violations also
extends to violations committed by private persons, at least whenever the
Government
concerned knew or should have known about the unlawful acts.
The Inter-American Court of Human Rights has thus made it clear that a State
party to the American Convention on Human Rights “is obligated to investigate
every
situation involving a violation of the rights protected by the Convention” and
that,
when it does not do so, “the State has failed to comply with its duty to ensure
the free
and full exercise of those rights to the persons within its jurisdiction”. In the
Court’s
view,
“The same is true when the State allows private persons or groups to act
freely and with impunity to the detriment of the rights recognized by the
Convention.”198
The abovementioned case of Mahmut Kaya v. Turkey shows that the European
Court of Human Rights may hold Governments responsible for human rights
violations committed by private persons, at least to the extent that the
authorities were
aware of such acts or “ought to have been aware of the possibility” that such
acts might
be carried out by persons or groups of persons “acting with the knowledge or
acquiescence of elements in the security forces”.199
*****
As may be seen from these selected cases and statements, impunity for serious
violations of human rights such as arbitrary killings, abduction, disappearances,
torture
and other forms of inhuman treatment is strictly illegal under international
human
rights law. This chapter has made it clear that States have a legal duty
effectively to
ensure the protection of everyone’s human rights including, in particular, the
right to
life and liberty and to security. States that fail to comply with this duty at the
domestic
level may have to assume international responsibility before the international
monitoring bodies.
Lawyers 807
197UN doc. GAOR, A/55/18, p. 32, paras. 141 and 144.
198I-A Court HR, Velásquez Rodríguez Case, judgment of July 29, 1989, Series C, No. 4, pp. 155-156, para.
176.
199Eur. Court HR, Case of Mahmut Kaya v. Turkey, judgment of 28 March 2000, para. 91 of the text as
published at http://echr.coe.int
3.7.2 Justice, impunity and reconciliation
As noted above, the question of impunity for perpetrators of human rights
violations is frequently a subject of intense debate when a country is emerging
from a
period of oppression or armed conflict and wants to move into an era of peace,
security
and democracy. In these circumstances, victims of human rights violations, war
crimes
and crimes against humanity yearn for recognition of their hardship and for
ultimate
justice for the wrongs committed. In particular, many victims whose close family
members disappeared and/or were arbitrarily deprived of their life would have
strong
and persistent feelings of anxiety and a need to know the truth about what
happened to
their loved ones. On the other hand, perpetrators of human rights violations and
other
wrongs generally insist on obtaining amnesty or pardon for the acts committed.
But in
the midst of these apparent tensions, society needs to find a modus vivendi in
order to
move forward for the good of all.
This is not the place to seek to resolve the many and often very complex issues
of guilt, admission of guilt, chastisement, reparation, rehabilitation and
reconciliation
that arise in such situations. It may, however, be said in the light of this chapter
that, as a
bare minimum, amnesties and pardons cannot in any circumstances be granted
for
violations of the right to life and the right to liberty and security of the person,
including
the right to freedom from torture and other forms of ill-treatment. As will be
shown in
the next chapter, these are some of the rights that cannot be derogated from in
any
circumstances, not even in times of public emergency. The principle of justice for
everyone demands that victims’ rights and sufferings be recognized and
remedied, that
the perpetrators be punished and that the States involved act effectively to
prevent
similar acts from occurring in the future. A society is unlikely to be able to heal
its
wounds and raise itself from the ruins of oppression in a constructive way unless
these
minimum legal requirements that derive from human dignity are effectively met.
In
other words, although some form of national reconciliation will ultimately have to
be
reached through negotiations between the parties concerned, a lasting and
prosperous
reconciliation must, out of respect for the victims, be based on such elementary
justice.
Impunity for human rights violations is contrary to States’ legal duty to
ensure the effective protection of such rights under international law.
De facto failure to prosecute human rights violations as well as laws that
grant impunity for such violations amount to breaches of international law.
The requirement that States prohibit impunity is also applicable to acts
carried out by private individuals.
Impunity for serious human rights violations such as arbitrary killings,
disappearances and torture creates particular hardship for victims and
their next-of-kin and must be prevented.
Respect for the dignity of the human person demands that such violations
be recognized, punished and redressed.
Sustainable national reconciliation is likely to prove unattainable in a
situation where the basic interests of victims of serious human rights
abuses are not acknowledged.

and Lawyers in Ensuring Justice
for Victims of Crime and
Human Rights Violations
Whether a person is a victim of crime or human rights violations, this chapter
has shown the essential role of judges, prosecutors and lawyers in responding
effectively to the problems, needs and rights of the victim concerned. Members
of the
legal professions must not only be courteous and show understanding; they must
also
have a sound knowledge of human rights law and be prepared at all times to act
impartially and independently in the pursuit of justice. Indeed, without an
independent
and impartial judiciary, as well as independent prosecutors and independent
lawyers
who are given the liberty to act promptly, vigorously and effectively in response
to
alleged human rights violations, human rights will largely remain a dead letter. It
is for
all States to grant the legal professions this independence and impartiality, and
for the
members of the legal professions to take the lead in enforcing human rights law
by
vigorously investigating and prosecuting acts that violate individual rights and
freedoms.
This chapter has focused in the first place on protection and redress for
victims of crime and, secondly, on protection and redress for victims of human
rights
violations. While international law is somewhat lacking in legal provisions
relating to
the rights of victims of ordinary crime, the opposite is true in the case of victims
of
human rights violations. In this area, numerous legal provisions and a
comprehensive
jurisprudence provide a rich source of knowledge and inspiration for the legal
professions.
States’ legal duty to prevent, protect, investigate, prosecute, punish and
redress human rights violations has been given ample coverage in this chapter.
Although there has been a tendency to focus on the right to life and the right to
freedom from torture and other forms of ill-treatment and violence, the same
obligations exist with regard to the whole spectrum of human rights. As rights
are
interdependent, their effective protection cannot be examined in isolation.
Torture
victims, for instance, must be able to speak freely in order to vindicate their
rights and
must enjoy respect for their correspondence in order to be able to communicate
with
legal counsel and so forth. This intrinsic relationship among rights becomes
particularly
relevant to the enjoyment in crisis situations of those rights that cannot be
derogated
from in any circumstances and others that can, in principle, be derogated from.
This
will form part of our analysis in the last chapter of this Manual.
Lawyers 809
.........Chapter 16
THE ADMINISTRATION
OF JUSTICE DURING
STATES OF EMERGENCY .......
Learning Objectives
_ To familiarize course participants with the specific legal rules that States
are required
to follow in derogating from international human rights obligations
_ To provide details of non-derogable rights and obligations
_ To familiarize the participants with the basic principles that apply to
derogable rights
_ To create awareness among the participating judges, prosecutors and
lawyers of their
essential role as pillars of enforcement of the rule of law, including the
protection of
human rights, also in states of emergency
_ To stimulate discussion on, and awareness of, alternative conflict
resolution measures
Questions
_ Is it possible in the legal system within which you work to derogate from,
or suspend,
the full enjoyment of human rights and fundamental freedoms?
_ If your answer is in the affirmative:
– In what circumstances can this be done?
– Which body decides?
– Which rights can be affected by a decision to derogate from, or suspend,
the full
enjoyment thereof?
_ If a state of emergency/state of exception/martial law, etc. is declared in
the country
in which you work, what remedies are available
– to challenge the decision to declare the state of emergency/state of
exception/
state of alarm/state of siege/martial law, etc.?
– to challenge the decision to derogate from, or suspend, the full
enjoyment of specific
human rights?
– to examine the full enjoyment of non-derogable rights?
– to challenge the necessity of an emergency measure as applied in a
specific case
(e.g. extrajudicial deprivation of liberty for a suspected terrorist)?
Lawyers 811
Questions (cont.d)
_ In your view, what is, or should be, the purpose of the declaration of a
state of
emergency and the derogation from human rights obligations?
_ In your view, why could it be necessary to suspend the full enjoyment of
human rights
and fundamental freedoms in order to deal with a severe crisis situation?
_ Could there, in your view, be any reason why it might be
counterproductive for a
Government to suspend the full enjoyment of some human rights in order
to deal with
a severe crisis situation?
_ In your view, are there any human rights that might be particularly
vulnerable in a
crisis situation?
_ Might there, in your view, be means other than derogations from human
rights
obligations whereby States could deal constructively with a severe crisis
situation?
_ International Covenant on Economic, Social, and Cultural Rights, 1966
Treatment or Punishment, 1984
Women, 1979
_ Inter-American Convention to Prevent and Punish Torture, 1985
_ Inter-American Convention on Forced Disappearance of Persons,
1994
_ European Social Charter, 1961, and European Social Charter (Revised)
1996
Chapter 16 • The Administration of Justice During States of Emergency
1. Introduction
1.1 General introductory remarks
The present chapter will provide some basic information about the main legal
principles in international human rights law that govern the right of States to
take
measures derogating from their legal obligations in emergency situations.
It is an undeniable fact of life that many States will at some stage be
confronted with serious crisis situations, such as wars or other kinds of serious
societal
upheavals, and that in such situations they may consider it necessary, in order to
restore
peace and order, to limit the enjoyment of individual rights and freedoms and
possibly
even to suspend their enjoyment altogether. The result may be disastrous not
only for
the persons affected by the restrictions but also for peace and justice in general.
The drafters of the International Covenant on Civil and Political Rights, who
had learned their lessons during a long and devastating war, knew all too well
that
recognition of human rights for all “is the foundation of freedom, justice and
peace in
the world”.1 However, they were not, of course, oblivious to the serious problems
that
may develop in a country and may endanger its very survival. They therefore
included,
after much debate – and only after including protections against abuse – a
provision
allowing States parties to resort to derogatory measures on certain strict
conditions
(art. 4). Similar provisions were included in the American Convention on Human
Rights (art. 27) and the European Convention on Human Rights (art. 15).
Contrary to
the International Covenant on Economic, Social and Cultural Rights, which
contains
only a general limitation provision inspired by article 29 of the Universal
Declaration of
Human Rights, the European Social Charter envisages the possibility of
derogation
both in its original version (art. 30) and in its revised version (Part V, art. F).
States may apply various terms to the special legal order introduced in crisis
situations such as “state of exception”, “state of emergency”, “state of alarm”,
“state of
siege”, “martial law” and so forth. These exceptional situations often involve the
introduction of special powers of arrest and detention, military tribunals and, for
instance, the enactment of criminal laws that are applied retroactively and limit
the right
to freedom of expression, association and assembly. Worse, in many situations
of
upheaval, States have recourse to torture and other forms of ill-treatment to
extract
confessions and may also, with or without the help of private or semi-private
groups,
resort to abduction and extrajudicial killings. Furthermore, the right to have
recourse to
domestic remedies such as the writ of habeas corpus may be suspended, so
that, for
instance, victims of arbitrary arrest and detention are left without legal
protection, with
devastating results.
This abusive use of extraordinary powers is not lawful under the
aforementioned treaties. These treaties provide States parties with limited but
flexible
Lawyers 813
1First preambular paragraph of the Covenant, which is identical to that of the International Covenant on
Economic, Social and
Cultural Rights.
and well-balanced exceptional powers designed to restore a constitutional order
in
which human rights can again be fully ensured.
The purpose of this chapter is therefore to explain the various conditions that
the international treaties impose on States parties’ right to resort to derogations.
Following a general survey of the travaux préparatoires relating to the relevant
provisions,
the notion of public emergency threatening the life of the nation will be
examined. The
rights and obligations that may not in any circumstances be derogated from will
then be
dealt with in some detail. This will be followed by an analysis of the concept of
strict
necessity and a brief description of the condition of consistency with other
international legal obligations, as well as the prohibition of discrimination. The
chapter
will close with a number of suggestions regarding the role to be played by the
legal
professions in emergency situations, followed by some concluding remarks.
1.2 Introductory remarks on limitations
and derogations in the field of human rights
Before going into the subject of derogations in detail, it may be useful to
consider briefly the nature of derogations from human rights obligations as
compared
with limitations on the exercise of human rights under normal circumstances. As
seen
in Chapter 12 of this Manual, States may impose limitations on the enjoyment of
many
rights such as the right to freedom of expression, association and assembly for
certain
legitimate purposes. Such limitations are often called “ordinary” limitations since
they
can be imposed permanently in normal times. So-called derogations, on the
other hand,
are designed for particularly serious crisis situations that require the introduction
of
extraordinary measures.
Derogations have therefore also been called “extraordinary limitations” on
the exercise of human rights. Indeed, on closer examination, it will be seen that
ordinary
limitations on the exercise of human rights and extraordinary limitations in the
form of
derogations “are closely linked and … rather than being two distinct categories
of
limitations, they form a legal continuum”.2 This link between ordinary and
extraordinary
limitations on human rights is made even more evident by the fact that, as will
be shown
infra in subsection 2.3.2, while some rights may be subjected to further strict
limitations
in emergency situations, such limitations must not annihilate the substance of
the rights
inherent in the human person. There must, in other words, at all times be a
continuum
in respect of the legally protected substance of a right. This is an important fact
for all
members of the legal professions to bear in mind when they have to deal with
questions
of emergency powers that may interfere with the effective enjoyment of human
rights
and fundamental freedoms.
2See Anna-Lena Svensson-McCarthy, International Law of Human Rights and States of Exception - With
Special Reference to the Travaux
Préparatoires and Case-Law of the International Monitoring Organs (The Hague/Boston/London, Martinus
Nijhoff Publishers, 1998)
(International Studies in Human Rights, vol. 54), pp. 49 and 721 (hereinafter referred to as Svensson-
McCarthy, The International Law of
Human Rights and States of Exception).
2. The Notion of Public Emergency

in International
Human Rights Law
provides that:
“In time of public emergency which threatens the life of the nation and the
existence of which is officially proclaimed, the States Parties to the present
Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination
solely on the ground of race, colour, sex, language, religion or social
origin.”
Article 27(1) of the American Convention on Human Rights reads as follows:
“In time of war, public danger, or other emergency that threatens the
independence or security of a State Party, it may take measures derogating
from its obligations under the present Convention to the extent and for the
period of time strictly required by the exigencies of the situation, provided
that such measures are not inconsistent with its other obligations under
international law and do not involve discrimination on the ground of race,
color, sex, language, religion, or social origin.”
Article 15(1) of the European Convention on Human Rights stipulates that:
“In time of war or other public emergency threatening the life of the nation
any High Contracting Party may take measures derogating from its
obligations under this Convention to the extent strictly required by the
exigencies of the situation, provided that such measures are not
inconsistent with its other obligations under international law.”
Lastly, article 30 of the 1961 European Social Charter states that:
“In time of war or other public emergency threatening the life of the nation
any Contracting Party may take measures derogating from its obligations
under this Charter to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with its other
obligations under international law.”
The wording of article F of the 1996 European Social Charter as revised is in
substance identical with this provision.
Lawyers 815
2.1.1 Derogations and the African Charter on Human
and Peoples’ Rights
In contrast to the American and European Conventions on Human Rights,
the African Charter on Human and Peoples’ Rights contains no derogation
provision.
In the view of the African Commission on Human and Peoples’ Rights, this means
that
the Charter “does not allow for states parties to derogate from their treaty
obligations
during emergency situations”.3 In other words, even a civil war cannot “be used
as an
excuse by the state (for) violating or permitting violations of rights in the African
Charter”.4 In a communication brought against Chad, the Commission stated that
the
Government concerned had “failed to provide security and stability in the
country,
thereby allowing serious or massive violations of human rights”. The national
armed
forces were “participants in the civil war” and there had been several instances
in which
the Government had “failed to intervene to prevent the assassination and killing
of
specific individuals”. Even where it could not “be proved that violations were
committed by government agents, the government had a responsibility to secure
the
safety and the liberty of its citizens, and to conduct investigations into
murders”.5 The
civil war could not therefore be used as a legal shield for failure to fulfil the legal
obligations under the African Charter, and Chad was held to have violated
articles 4, 5,
6, 7 and 9.6
2.2. Derogations from legal obligations:
A dilemma for the drafters
As may be seen from the preceding provisions, the notion of emergency in
article 4(1) of the International Covenant is very similar to that in article 15 of
the
European Convention on Human Rights. This resemblance is due to the fact that
the
drafting of the two treaties was at first carried out simultaneously, albeit within
the
framework of two different organizations, the United Nations and the Council of
Europe. However, while the European Convention was adopted on 4November
1950,
work on the Covenant continued. Article 4 therefore underwent changes until it
was
given its final form – in terms of substance – by the United Nations Commission
on
Human Rights in 1952.7
The introduction of a derogation provision into the Covenant was first
proposed by the United Kingdom in a Drafting Committee of the United Nations
Commission on Human Rights in June 1947. The provision was contained in
article 4
of the United Kingdom draft International Bill of Human Rights, and it envisaged
possible derogations from all obligations enumerated in article 2 of the draft “to
the
3ACHPR, Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Communication No. 74/92,
decision adopted
during the 18th Ordinary session, October 1995, para. 40 of the text of the decision as published at:
http://www.up.ac.za/chr/
4Ibid., loc. cit.
5Ibid., para. 41.
7For the text of article 4(1) (then article 3(1)) as adopted, see UN doc. E/2256 (E/CN.4/669), Report of the
eighth session of the
Commission on Human Rights 1952, annex I, p. 47. For a fuller historic account of the elaboration of the
notion of emergency in
article 4 of the Covenant, see Svensson-McCarthy, The International Law of Human Rights and States of
Exception, pp. 200-217.
extent strictly limited by the exigencies of the situation”. This implied that States
would
also have been able to derogate from the obligation to provide effective
remedies for
human rights violations, remedies that should “be enforceable by a judiciary
whose
independence [was] secured”.8 A slightly modified version of the proposed
derogation
provision was subsequently rejected by a Working Group, although subsequently
narrowly approved by the Commission itself. Prior to the vote, the United
Kingdom
expressed the view that “if such a provision were not included, in time of war it
might
leave the way open for a State to suspend the provisions of the Convention.” It
was
“most important that steps should be taken to guard against such an
eventuality”.9
The arguments for and against the advisability of a derogation provision
continued during the subsequent sessions of the Commission on Human Rights.
The
United States, for instance, was against such a provision and favoured a general
limitation clause, while the Netherlands feared that it might “imperil the success
of the
work of the Commission”, emphasizing that “the circumstances under which a
Party
may evade its obligations should be defined as precisely as possible”.10 Although
later
abandoning the idea of a general limitation provision, the United States was still
against
the derogation provision.11 The USSR was “in favour of the least possible
limitation”
and therefore proposed to limit the scope of the derogation article by adding the
phrase
“directed against the interests of the people” after “in time of war or other public
emergency”.12
Although it had previously opposed the derogation article “fearing the
arbitrary suppression of human rights on the plea of a national emergency,”13
France
expressed the view during the fifth session of the Commission in 1949 that
article 4
“should neither be deleted nor limited to time of war”. It considered that there
“were
cases when States could be in extraordinary peril or in a state of crisis, not in
time of
war, when such derogations were essential”. In the view of France, the following
principles should be recognized:
_ “that limitations on human rights were permissible in time of war or other
emergency”;
_ “that certain rights were not subject to limitation under any conditions”; and
_ “that derogation from the Covenant must be subject to a specified procedure
and
that such derogation, undertaken under exceptional circumstances, must
accordingly be given exceptional publicity”.14
Lawyers 817
8See UN doc. E/CN.4/AC.1/4, annex 1, p. 7 (art. 4) and p. 6 (art. 2). Article 4(1) of the proposal read: “In time
of war or other
national emergency, a state may take measures derogating from its obligations under Article 2 above to the
extent strictly limited by
the exigencies of the situation.”
9UN docs. E/CN.4/AC.3/SR.8, p. 11 (Working Group), and E/CN.4/SR.42, p. 5 (Commission, statement by
United Kingdom
representative and vote).
10UN doc. E/CN.4/82/Rev.1, Comments from Governments on the Draft International Declaration on Human
Rights, Draft
International Covenant on Human Rights and the question of implementation, p. 22 (United States of
America), and p. 5
(Netherlands).
11UN doc. E/CN.4/SR.126, p. 3.
12Ibid., p. 6.
13UN doc. E/CN.4/SR.127, p. 7.
14UN doc. E/CN.4/SR.126, p. 8
France considered that the principle of non-derogability of certain rights “was
a sound and permanent safeguard” and that there was, in addition, “an essential
distinction between the restriction of certain rights and the suspension of the
Covenant’s application”.15
During the same session, India, Egypt and Chile accepted the principles
contained in the draft derogation provision, but the United States and the
Philippines
were still against it.16 Lebanon was likewise against the derogation provision,
fearing
that, if the term “war” was deleted – as many delegates wanted – it would “be
difficult
to determine the cases in which derogations were permissible on the basis of so
elastic a
term as ‘public emergency’.” Compared to the term “war”, the meaning of the
concept
of a “public emergency” was, according to Lebanon, “very hazy [and] might give
rise to
interpretations more far-reaching than…intended”.17
During the Commission’s sixth session in 1950, Uruguay expressed support
for the derogation provision “in spite of the serious problems it raised”, because
it “set
forth a new principle in international law – that of responsibility of States towards
the
members of the community of nations for any measures derogating from human
rights
and fundamental freedoms”. This principle was, moreover, “established in most
national legislations under which the executive power was responsible for its
measures
suspending constitutional guarantees”.18 Chile now withdrew its previously
declared
support for article 4 and proposed its deletion since it was “drafted in such
indefinite
terms that it would permit every kind of abuse”. In the opinion of Chile, concepts
such
as “national security” and “public order” as contained in some articles
“sufficiently
covered all cases which might arise in time of war or other calamity”.19 France
disagreed, pleading for the retention of the derogation provision since it was
“essential
for the covenant to include a list of articles from which there could never be any
derogation”. Such a list was necessary “to prevent abuses by dictatorial
regimes”.20
France now also proposed the insertion of “the clause concerning the official
proclamation” of the public emergency aimed at preventing States “from
derogating
arbitrarily from their obligations under the covenant when such an action was
not
warranted by events”.21
At the same session, the Commission eventually decided to retain article 4 in
the draft Covenant and further decided to replace the terms “In time of war or
other
public emergency threatening the interests of the people” by “In the case of a
state of
emergency officially proclaimed by the authorities or in the case of public
disaster”.22
15UN doc. E/CN.4/SR.127, p. 7.
16UN docs. E/CN.4/SR.126, p. 8 (India), E/CN.4/SR.127, p. 6 (Egypt), p. 3 (Chile), p. 3 (United States of
America) and p. 5
(Philippines).
17UN doc. E/CN.4/SR.126, pp. 6 and 8.
18UN doc. E/CN.4/SR.195, p. 11, para. 52.
19Ibid., p. 13, paras. 63-64.
20Ibid., p. 14, para. 69.
21Ibid., p. 16, para. 82.
22Ibid., p. 18, para. 97, compared with UN doc. E/CN.4/365, p. 20. For the full text, see UN doc. E/1681
(E/CN.4/507),
Report of the sixth session of the Commission on Human Rights, 27 March – 19 May 1950, annexes, p. 15
(the derogation article was
then contained in article 2).
The Commission’s last substantive discussion on the derogation provision
took place at its eighth session in 1952 when, as suggested by the United
Kingdom, it
was decided to change the terms of the first paragraph which were now to read
“In time
of public emergency threatening the life of the nation”. At the suggestion of
France, it
was further decided to add the requirement of official proclamation so as to
avoid
“arbitrary action and abuse”. This clause had been absent from the United
Kingdom
amendment.23 Chile also importantly pointed out that “it was difficult to give a
precise
legal definition of the life of the nation [but it] was significant that the text did
not relate
to the life of the government or of the state.”24
*****
These glimpses into the drafting history of the emergency notion contained in
article 4(1) of the Covenant provide an idea of the dilemma facing the drafters,
who had
to live up to the expectations of a world avid for peace, justice and respect for
the basic
rights of the human person. At the same time, they could not leave out of
consideration
the complex realities that confront many countries in times of crisis. The fear of
an
abusive use of the right to derogation was real and evident, and it resulted in the
drafting
of an article that imposes strict conditions on the exercise of that right, controls
that
were almost totally absent from the original draft. The discussions thus had a
wholesome effect on the theoretical protection of the individual in emergency
situations, in that the freedom of action of States in the field of human rights was
limited by:
_ the principle of exceptional threat;
_ the principle of official proclamation;
_ the principle of non-derogability of certain rights;
_ the principle of strict necessity;
_ the principle of compatibility with other international legal obligations;
_ the principle of non-discrimination; and
_ the principle of international notification.
*****
Generally speaking, the discussions were less difficult at the regional level and
the divisions more easily overcome.
The emergency concept contained in article 27(1) of the American
Convention on Human Rights is worded differently from its universal and
European
counterparts. Rather than referring to a threat to “the life of the nation”, it
authorizes
derogations “in time of war, public danger, or other emergency that threatens
the
independence or security of a State party”. The draft derogation article
submitted to the
Specialized Inter-American Conference on Human Rights held in San José, Costa
Rica,
in 1969 contained no reference to “public danger”.25 During the Conference,
however,
Lawyers 819
23See UN docs. E/CN.4/L.211 (French amendment) and E/CN.4/SR.330, p. 7.
24UN doc. E/CN.4/SR.330, p. 4.
25OAS doc. OEA/Ser.K/XVI/1.2, Conferencia Especializada Interamericana sobre Derechos Humanos, San
José, Costa Rica, 7-22 de
noviembre de 1969, Actas y Documentos, OAS, Washington D.C., p. 22.
El Salvador proposed to amend the text so as to have the terms “or other public
calamity” (“u otra calamidad pública”) inserted because, in its view, it was “a
situation that
was not necessarily a threat to internal or external security, but which could
nevertheless arise”.26 The amendment was adopted although the text was
subsequently
modified to “of public danger” (“de peligro público”).27 During the Conference,
Mexico
proposed to delete the reference to the principle of consistency with other
international
obligations, the principle of non-discrimination and the principle of non-
derogable
rights. The Mexican proposal was defeated.28
*****
The only differences between the emergency concept contained in article
15(1) of the European Convention and that in article 4(1) of the International
Covenant
are that the former also refers to “war” and that the verb is in the gerund
(“threatening”) rather than the simple present tense (“which threatens”). To
judge
from the travaux préparatoires, the elaboration and final adoption of article 15
were
relatively uneventful. As with the Covenant, the United Kingdom proposed that a
derogation provision be inserted in the draft Convention.29 The early draft
prepared by
the Consultative Assembly of the Council of Europe contained no derogation
provision but only a general limitation provision.30 The Committee of Experts that
had
been entrusted with the task of elaborating a convention subsequently
submitted two
alternatives to the Committee of Ministers of the Council of Europe. One
alternative
contained a simple enumeration of rights to be protected, while the second
defined the
rights in some detail, attaching specific limitation provisions to each relevant
right. A
derogation provision had, however, been inserted in both alternatives.31 There is
no
record of any criticism of the inclusion of a derogation provision in the version
that was
finally adopted, namely the version that defined rather than simply enumerated
the
rights to be protected. However, France and Italy disapproved of the derogation
provision in the version containing a simple enumeration of rights, since it would
be
“contrary to the system”. Other members of the Committee of Experts
considered it
important to retain the relevant provision also in that context
“since it had the advantage of excluding, even in the case of war or threat to
the life of the nation, any derogation of certain fundamental rights, and
because the procedure laid down in paragraph 3 could prove to be useful
for the protection of human rights in exceptional circumstances”.32
*****
26Ibid., p. 264; translation from Spanish original.
27Ibid., p. 319.
28Ibid., pp. 264-265.
29Council of Europe, Collected Edition of the “Travaux Préparatoires” of the European Convention on
Human Rights, vol. III, Committee of
Experts, 2 February - 10 March 1950, pp. 190, 280 and 282.
30Council of Europe, Consultative Assembly, First Ordinary Session, 10 August - 8 September 1949, TEXTS
ADOPTED,
Strasbourg, 1949, Recommendation 38 (Doc. 108), p. 50 (art. 6).
31Council of Europe, Collected Edition of the “Travaux Préparatoires” of the European Convention on
Human Rights, vol. IV, Committee of
Experts - Committee of Ministers Conference of Senior Officials, 30 March - June 1950; see, for example, p.
56 (Alternatives A and
A/2) and pp. 56 and 58 (Alternatives B and B/2).
32Ibid., p. 30.
As at the universal level, it was accepted in the Americas and Europe that
States might need to have wider powers to manage particularly serious crisis
situations,
but on condition that the exercise of emergency powers be accompanied by
strict limits
on and international accountability for the acts taken. The years of human
injustice
that had led to a global cataclysm made it imperative for the drafters not to give
Governments a free hand in managing crisis situations. The derogation
provisions, in
other words, strike a carefully weighed balance between, on the one hand, the
needs of
the State and, on the other, the right of individuals to have most of their rights
and
freedoms effectively protected in public emergencies, and to have guarantees
that the
exercise of other rights will not be subjected to undue limitations. Although some
differences exist between the three relevant provisions, this basic tenet is
equally valid
for all.
Some of the major international human rights treaties allow States
parties to derogate from some of their obligations under these treaties in
exceptional crisis situations.
The right to derogate is a flexible instrument designed to help
Governments to overcome exceptional crisis situations.
The right to derogate does not mean that the derogating State can escape
its treaty obligations at will. It is a right that is circumscribed by several
conditions such as the principle of non-derogability of certain rights, the
principle of strict necessity and the principle of international notification.
It is clear from the travaux préparatoires that the right to derogate
was not intended to be used by authoritarian regimes seeking to eliminate
human rights and that it cannot be used to save a specific Government.
2.3 The interpretation of the international
monitoring bodies
2.3.1 Article 4(1) of the International Covenant on Civil
and Political Rights
In General Comment No. 29 adopted in July 2001, which replaces General
Comment No. 5 of 1981, the Human Rights Committee confirms that “article 4
subjects both this very measure of derogation, as well as its material
consequences, to a
specific regime of safeguards”.33 With regard to the purpose of derogation, the
Committee states that:
“The restoration of a state of normalcy where full respect for the Covenant
can again be secured must be the predominant objective of a State party
derogating from the Covenant.”34
Lawyers 821
34Ibid., loc. cit.
This means that, whenever the purpose of the derogation is alien to the
restoration of a constitutional order respectful of human rights, it is unlawful
under
article 4(1) of the Convention and the actions of the State concerned have to be
judged
in the light of its ordinary treaty obligations.
As noted by the Committee, a State party must comply with “two
fundamental conditions” before invoking article 4(1) of the Covenant, namely (1)
“the
situation must amount to a public emergency which threatens the life of the
nation”
and (2) “the State party must have officially proclaimed a state of emergency”.35
The
latter requirement, according to the Committee,
“is essential for the maintenance of the principles of legality and the rule of
law at times when they are most needed. When proclaiming a state of
emergency with consequences that could entail derogation from any
provision of the Covenant, States must act within their constitutional and
other provisions of law that govern such proclamation and the exercise of
emergency powers; it is the task of the Committee to monitor that the laws
in question enable and secure compliance with article 4.”36
With regard to the condition of exceptional threat, it is evident that “not
every disturbance or catastrophe qualifies as a public emergency which
threatens the
life of the nation” within the meaning of article 4(1).37 In this regard, the
Committee
states that:
“During armed conflict, whether international or non-international, rules
of international humanitarian law become applicable and help, in addition
to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to
prevent the abuse of a State’s emergency powers. The Covenant requires
that even during an armed conflict measures derogating from the
Covenant are allowed only if and to the extent that the situation constitutes
a threat to the life of the nation. If States parties consider invoking article 4
in other situations than an armed conflict, they should carefully consider
the justification why such a measure is necessary and legitimate in the
circumstances.”38
The Committee here makes it clear that, irrespective of whether article 4(1) is
invoked in an armed conflict or some other kind of crisis, the situation must be
so
serious as to constitute “a threat to the life of the nation”.
As further emphasized by the Committee, “the issues of when rights can be
derogated from, and to what extent, cannot be separated from the provision in
article 4,
paragraph 1, of the Covenant” according to which any derogatory measures
must be
limited “to the extent strictly required by the exigencies of the situation”. “This
condition requires that States parties provide careful justification not only for
their
decision to proclaim a state of emergency but also for any specific measures
based on
such a proclamation. If States purport to invoke the right to derogate from the
Covenant during, for instance, a natural catastrophe, a mass demonstration
including
35Ibid., p. 202, para. 2.
36Ibid., loc. cit.
37Ibid., p. 202, para. 3.
38Ibid., loc. cit.
instances of violence, or amajor industrial accident, they must be able to justify
not only
that such a situation constitutes a threat to the life of the nation, but also that all
their
measures derogating from the Covenant are strictly required by the exigencies
of the
situation. In the opinion of the Committee, the possibility of restricting certain
Covenant rights under the terms of, for instance, freedom of movement (article
12) or
freedom of assembly (article 21) is generally sufficient during such situations
and no
derogation from the provisions in question would be justified by the exigencies of
the
situation.”39 In other words, there is a presumption against allowing derogations
from
articles 12 and 21 in response to natural catastrophes, mass
demonstrations and
major industrial accidents, and States parties would have to submit strong
evidence
to rebut this presumption.
When considering the reports of States parties, the Committee has on “a
number of occasions … expressed its concern over States parties that appear to
have
derogated from rights protected by the Covenant, or whose domestic law
appears to
allow such derogation in situations not covered by article 4”.40 The Committee
thus,
inter alia, expressed concern in the case of the United Republic of Tanzania “that
the
grounds for declaring a state of emergency are too broad and that the
extraordinary
powers of the President in an emergency are too sweeping”. It therefore
suggested
“that a thorough review be undertaken of provisions relating to states of
emergency
with a view to ensuring their full compatibility with article 4”.41 The Committee
expressed similar concern regarding the Dominican Republic, where “the
grounds for
declaring a state of emergency are too broad”. It recommended in general “that
the
State party should undertake a major initiative aimed at harmonizing its
domestic
legislation with the provisions of the Covenant”.42
The Committee further expressed concern at the constitutional provisions
“relating to the declaration of a state of emergency” in Uruguay, which “are too
broad”.
It recommended “that the State party restrict its provisions relating to the
possibilities
of declaring a state of emergency”.43 The Committee was also concerned that
Bolivia’s
legislation “in respect of the state of siege does not comply with the provisions
of the
Covenant” and that the expression “conmoción interior” (internal disturbance) is
much too wide to fall within the scope of article 4.44
The proposals for constitutional reform in Colombia caused “deep concern”
to the Committee because, if adopted, they “would raise serious difficulties with
regard
to article 4”. The impugned proposals were aimed at “suppressing time limits on
states
of emergency, eliminating the powers of the Constitutional Court to review the
declaration of a state of emergency, conceding functions of the judicial police to
military authorities, adding new circumstances under which a state of
emergency may
be declared, and reducing the powers of the Attorney-General’s Office and the
Public
Prosecutor’s Office to investigate human rights abuses and the conduct of
members of
the paramilitary, respectively”. The Committee therefore recommended that the
Lawyers 823
39Ibid., p. 203, para. 5.
40Ibid., pp. 202-203, para. 3.
41UN doc. GAOR, A/48/40 (vol. I), p. 43, para. 184, and p. 44, para. 188.
42Ibid., p. 101, para. 459.
proposals be withdrawn.45 It also recommended that Trinidad and Tobago comply
“with the categorization of an emergency that it must threaten the ‘life of the
nation’”.46
A State party may, of course, only derogate from article 4 of the Covenant for
as long as it is genuinely confronted with a “public emergency which threatens
the life
of the nation”. Emergency legislation cannot therefore remain in force for so long
that
it becomes institutionalized so that it is the rule rather than the exception. In this
regard,
the Committee expressed “its deep concern at the continued state of emergency
prevailing in Israel, which has been in effect since independence”. It
recommended
“that the Government review the necessity for the continued renewal of the
state of
emergency with a view to limiting as far as possible its scope and territorial
applicability
and the associated derogation of rights”.47 The Committee expressed a similar
concern
in the case of the Syrian Arab Republic, where “Legislative Decree No. 51 of 9
March
1963 declaring a state of emergency has remained in force ever since that date,
placing
the territory of the … Republic under a quasi-permanent state of emergency,
thereby
jeopardizing the guarantees of article 4”. It therefore recommended that the
state of
emergency “be formally lifted as soon as possible”.48
The Committee recommended to the United Kingdom in 1995 that “further
concrete steps be taken so as to permit the early withdrawal of the derogation
made
pursuant to article 4 and to dismantle the apparatus of laws infringing civil
liberties
which were designed for periods of emergency”. “Given the significant decline in
terrorist violence in the United Kingdom since the cease-fire came into effect in
Northern Ireland and the peace process was initiated, the Committee [urged] the
Government to keep under the closest review whether a situation of ‘public
emergency’
within the terms of article 4, paragraph 1, still [existed] and whether it would be
appropriate for the United Kingdom to withdraw the notice of derogation which it
issued on 17 May 1976.”49
In communications brought under the Optional Protocol, the Committee has
made it clear that it is for the State party to substantiate the allegation that it is
indeed
facing exceptional circumstances that may justify a derogation under article
4(1). It is
not sufficient for the country concerned simply to invoke “the existence of
exceptional
circumstances”.50 Rather it is “duty bound” in proceedings under the Optional
Protocol “to give a sufficiently detailed account of the relevant facts to show that
a
situation of the kind described in article 4 (1)…exists in the country
concerned”.51 As
stated by the Committee in the case of Landinelli Silva and Others v. Uruguay,
“In order to discharge its function and to assess whether a situation of the
kind described in article 4 (1) of the Covenant exists in the country
concerned, it needs full and comprehensive information. If the respondent
45Ibid., pp. 46-47, para. 286, and p. 48, para. 299.
46UN doc. GAOR, A/56/40 (vol. I), p. 32, para. 9(a).
49UN doc. GAOR, A/50/40 (vol. I), p. 69, paras. 429-430.
50Communication No. R. 8/34, J. Landinelli Silva and Others v. Uruguay (Views adopted on 8 April 1981) in
UN doc. GAOR,
A/36/40, p. 132, para. 8.3.
51Communication No. R. 15/64, C. Salgar de Montejo v. Colombia (Views adopted on 24 March 1982), UN
doc. GAOR, A/37/40,
p. 173, para. 10.3
Government does not furnish the required justification itself, as it is
required to do under article 4(2) of the Optional Protocol and article 4 (3)
of the Covenant, the Human Rights Committee cannot conclude that valid
reasons exist to legitimize a departure from the normal legal régime
prescribed by the Covenant.”52
*****
From these comments and recommendations it is clear in the first place that,
in order to be consistent with article 4(1), domestic law must authorize
derogations
from human rights obligations only in genuine emergency situations that are so
serious
as to actually constitute a threat to the life of the nation. Whether or not the
crisis
situation is caused by an armed conflict, it is the survival of the very nation that
must be
in jeopardy. It follows that no one crisis situation automatically justifies the
declaration
of a public emergency and derogations from a State’s obligations under the
Covenant.
In the light of the Committee’s statements, it appears clear that situations such
as
simple riots or internal disturbances do not, per se, justify the resort to
derogations
under article 4(1) of the Covenant.
Second, the state of emergency with ensuing limitations on the enjoyment of
human rights can only lawfully remain in force for as long as the situation so
warrants.
As soon as the situation ceases to constitute a threat to the life of the nation, the
derogations must be terminated. In other words, states of emergency and
derogations
from international human rights obligations cannot lawfully be maintained for so
long
that they become a permanent or quasi-permanent part of a country’s internal
legal
system.
Third, States parties continue to be bound by the principle of legality and the
rule of law throughout any “public emergency which threatens the life of the
nation”.
2.3.2 Article 27(1) of the American Convention
on Human Rights
To interpret article 27 of the American Convention on Human Rights, it must
first be determined what is meant by the term “suspension of guarantees”,
which is the
title of the article and recurs in the opinions and judgments of the Inter-American
Court of Human Rights. The term “suspension” is also found in article 27(2) and
(3),
while the expression “measures derogating from” is used in article 27(1). The
Inter-American Court has answered this question as follows:
“18.…An analysis of the terms of the Convention in their context leads to
the conclusion that we are not here dealing with a ‘suspension of
guarantees’ in an absolute sense, nor with the ‘suspension of … (rights),’
for the rights protected by these provisions are inherent to man. It follows
therefrom that what may only be suspended or limited is their full and
effective exercise.”53
Lawyers 825
52Communication No. R. 8/34, J. Landinelli Silva and Others v. Uruguay (Views adopted on 8 April 1981), in
UN doc. GAOR,
A/36/40, p. 133, para. 8.3.
53I-A Court HR, Advisory Opinion OC-8-87, January 30, 1987, Habeas Corpus in Emergency Situations (arts.
27(2), 25(1) and 7(6) American
Convention on Human Rights), Series A, No. 8, p. 37, para. 18.
Although made in the context of article 27 of the American Convention on
Human Rights, this statement is of relevance to international human rights law in
general, which derives from a recognition of the unique nature and “inherent
dignity”54
of the human person. In the preambles to the Universal Declaration of Human
Rights
and the two International Covenants, human rights are described as “the equal
and
inalienable rights of all members of the human family”, the recognition of which
“is the
foundation of freedom, justice and peace in the world”.
*****
In its groundbreaking advisory opinion on Habeas Corpus in Emergency
Situations, the Inter-American Court of Human Rights described in the following
terms
the function of article 27, which “is a provision for exceptional situations only”:
“20. It cannot be denied that under certain circumstances the suspension
of guarantees may be the only way to deal with emergency situations and,
thereby, to preserve the highest values of a democratic society. The Court
cannot, however, ignore the fact that abuses may result from the
application of emergency measures not objectively justified in the light of
the requirements prescribed in Article 27 and the principles contained in
other here relevant international instruments. This has, in fact, been the
experience of our hemisphere. Therefore, given the principles upon which
the inter-American system is founded, the Court must emphasize that the
suspension of guarantees cannot be disassociated from the ‘effective
exercise of representative democracy’ referred to in Article 3 of the OAS
Charter. The soundness of this conclusion gains special validity given the
context of the Convention, whose Preamble reaffirms the intention (of the
American States) ‘to consolidate in this hemisphere, within the framework
of democratic institutions, a system of personal liberty and social justice
based on respect for the essential rights of man.’ The suspension of
guarantees lacks all legitimacy whenever it is resorted to for the purpose of
undermining the democratic system. That system establishes limits that
may not be transgressed, thus ensuring that certain fundamental human
rights remain permanently protected.
21. It is clear that no right guaranteed in the Convention may be
suspended unless very strict conditions – those laid down in Article 27(1) –
are met. Moreover, even when these conditions are satisfied, Article 27(2)
provides that certain categories of rights may not be suspended under any
circumstances. Hence, rather than adopting a philosophy that favors the
suspension of rights, the Convention establishes the contrary principle,
namely, that all rights are to be guaranteed and enforced unless very special
circumstances justify the suspension of some, and that some rights may
never be suspended, however serious the emergency.”55
In its opinion the Court held, moreover, that:
54See the preambles to the Universal Declaration of Human Rights, the International Covenant on Civil and
Political Rights and
the International Covenant on Economic, Social and Cultural Rights.
55I-A Court HR, Advisory Opinion OC-8-87, January 30, 1987, Habeas Corpus in Emergency Situations (arts.
27(2), 25(1) and 7(6) American
Convention on Human Rights), Series A, No. 8, pp. 38-39, paras. 20-21.
“24. The suspension of guarantees also constitutes an emergency
situation in which it is lawful for a government to subject rights and
freedoms to certain restrictive measures that, under normal circumstances,
would be prohibited or more strictly controlled. This does not mean,
however, that the suspension of guarantees implies a temporary
suspension of the rule of law, nor does it authorize those in power to act in
disregard of the principle of legality by which they are bound at all times.
When guarantees are suspended, some legal restraints applicable to the acts
of public authorities may differ from those in effect under normal
conditions. These restraints may not be considered to be non-existent,
however, nor can the government be deemed thereby to have acquired
absolute powers that go beyond the exceptional circumstances justifying
the grant of such exceptional legal measures. The Court has already noted,
in this connection, that there exists an inseparable bond between the
principle of legality, democratic institutions and the rule of law.”56
While each State has, of course, the legal duty effectively to protect the rights
and freedoms of the individual, the State also has, according to the Inter-
American
Court of Human Rights, not only the right but the duty to guarantee its
security.57 The
Court stresses, however, that:
“regardless of the seriousness of certain actions and the culpability of the
perpetrators of certain crimes, the power of the State is not unlimited, nor
may the State resort to any means to attain its ends. The State is subject to
law and morality. Disrespect for human dignity cannot serve as the basis
for any State action.”58
*****
These excerpts from the opinions and judgments of the Inter-American
Court of Human Rights show that article 27 of the American Convention is
intended to
be used in truly exceptional situations when the State party concerned has no
other
means available to defend the independence and security of its democratic
constitutional order. Conversely, derogations on the basis of article 27 can in no
circumstances be invoked to install an authoritarian regime. In addition to the
principle
of democracy, States parties are also at all times bound by the principle of
legality and
the rule of law. While the exercise of some human rights may be subjected to
special
limitations in an emergency, such limitations must never go so far as to
annihilate the
substance of the rights inherent in the human person.
2.3.3 Article 15(1) of the European Convention on Human Rights
The interpretation by the European Court of Human Rights of article 15 of
the Convention provides some guidance as to what constitutes a threat to the
life of the
nation. As the cases are complex and the legal reasoning detailed, only the most
important aspects of the jurisprudence will be highlighted in this context.
Lawyers 827
56Ibid., p. 40, para. 24.
58Ibid., p. 147, para. 154.
Right of review/the role of the Court: It falls, of course, “in the first place
to each Contracting State, with its responsibility for ‘the life of (its) nation’ to
determine
whether that life is threatened by a ‘public emergency’ and, if so, how far it is
necessary
to go in attempting to overcome the emergency”.59 According to the Court:
“By reason of their direct and continuous contact with the pressing needs
of the moment, the national authorities are in principle in a better position
than the international judge to decide both on the presence of such an
emergency and on the nature and scope of derogations necessary to avert
it. In this matter Article 15 § 1 leaves those authorities a wide margin of
appreciation.”60
“Nevertheless, the States do not enjoy un unlimited power in this respect. The
Court, which is responsible for ensuring the observance of the States’
engagements
(Article 19) is empowered to rule on whether the States have gone beyond the
‘extent
strictly required by the exigencies’ of the crisis. The domestic margin of
appreciation is
thus accompanied by a European supervision.”61In later cases the Court
specified that,
in exercising this supervision, it must give appropriate weight to
“such relevant factors as the nature of the rights affected by the derogation,
the circumstances leading to, and the duration of, the emergency
situation”.62
The existence of a public emergency threatening the life of the nation:
In the
Lawless case, the Court held that “the natural and customary meaning of the
words ‘other
public emergency threatening the life of the nation’ is sufficiently clear
considering that”
“they refer to an exceptional situation of crisis or emergency which affects
the whole population and constitutes a threat to the organised life of the
community of which the state is composed.”63
According to the French version of the judgment, which is the authentic text,
the natural and customary meaning of the emergency concept in article 15(1)
indicates:
“en effet, une situation de crise ou de danger exceptionnel et imminent qui
affecte l’ensemble de la population et constitue une menace pour la vie
organisée de la communauté composant l’État”.64
The addition of the term “imminent” means that the exceptional situation of
danger or crisis must be a reality or be about to happen and that article 15
cannot be
invoked to justify derogations in the event of a remote or hypothetical crisis in or
danger to the life of the nation.
On the basis of this definition, the Court went on to determine whether the
Government was justified in declaring that there was a public emergency in the
59Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, pp.
78-79, para. 207.
60Ibid., p. 79, para. 207.
61Ibid., loc. cit.
62Eur. Court HR, Case of Brannigan and McBride v. the United Kingdom, judgment of 26 May 1996, Series A,
No. 258-B, p. 49, para. 43 at
p. 50 and. Eur. Court HR, Case of Demir and Others v. Turkey, judgment of 23 September 1998, Reports
1998-VI, p. 2654, para. 43.
63Eur. Court HR, Lawless Case (Merits), judgment of 1 July 1961, Series A, No. 3, p. 56, para. 28.
64Ibid., loc. cit.
Republic of Ireland in July 1957 that threatened the life of the nation, thereby
justifying
the derogation under article 15(1).65 The situation concerned the activities of the
IRA
and related groups in Ireland, and the derogation authorized the Minister of
Justice to
resort to extrajudicial detention of persons suspected of engaging in activities
prejudicial to the State. The Court concluded that “the existence at the time of a
‘public
emergency threatening the life of the nation’, was reasonably deduced by the
Irish
Government from a combination of several factors, namely”:
_ the existence in its territory “of a secret army engaged in unconstitutional
activities
and using violence to attain its purpose”;
_ “the fact that this army was also operating outside the territory of the State,
thus
seriously jeopardising the relations of the Republic of Ireland with its neighbour”;
and
_ “the steady and alarming increase in terrorist activities from the autumn 1956
and
throughout the first half of 1957”.66
The Court admitted thereafter that “the Government had succeeded, by using
means available under ordinary legislation, in keeping public institutions
functioning
more or less normally”. But “the homicidal ambush” carried out in early July
1957 in
Northern Ireland close to the border with the Republic “had brought to light …
the
imminent danger to the nation caused by the continuance of unlawful activities
in
Northern Ireland by the IRA and various associated groups, operating from the
territory of the Republic of Ireland”.67
Seventeen years later, the Court was called upon to consider article 15 in the
case of Ireland v. the United Kingdom, which concerned, inter alia, the terrorist
legislation
used by the United Kingdom in Northern Ireland. The existence of an emergency
“threatening the life of the nation” was, in the view of the Court, “perfectly clear
from
the facts” of the case and had not been challenged by the parties before it.68 The
Court
simply referred to its summary of the facts which showed, inter alia, that, at the
relevant
time in Northern Ireland, “over 1,100 people had been killed, over 11,500 injured
and
more than £140,000,000 worth of property destroyed. This violence found its
expression in part in civil disorders, in part in terrorism, that is organised
violence for
political ends.”69
In the case of Brannigan and McBride v. the United Kingdom, which ended in a
judgment in 1993, the Court once more concluded, after “making its own
assessment,
in the light of all the material before it as to the extent and impact of terrorist
violence in
Northern Ireland and elsewhere in the United Kingdom”, that “there can be no
doubt
that such a public emergency existed at the relevant time”.70
Lawyers 829
65Ibid.
66Ibid.
67Ibid., p. 56, para. 29. While the Court arrived at its decision unanimously, the case had previously been
examined by the
European Commission of Human Rights, in which a majority of nine members to five were satisfied that
there was, at the time, a
public emergency threatening the life of the nation. For the majority and minority opinions of the
Commission, see Eur. Court HR,
Lawless Case, Series B 1960-1961, pp. 81-102.
78, para. 205.
69Ibid., p. 10, para. 12. For further details concerning the facts, see pp. 14-30, paras. 29-75.
70Eur. Court HR, Case of Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A,
No. 258-B, p. 50, para. 47.
The situation obtaining in Northern Ireland in 1998 was considered in the
case of Marshall v. the United Kingdom, which was very similar to the
Branningan and
McBride case, but was dismissed at the stage of admissibility in July 2001. The
applicant
argued that “the security situation had changed beyond recognition” so that
“any public
emergency which might have existed in Northern Ireland was effectively over by
the
time of his unlawful detention”. In his view, moreover, “the Government should
not be
permitted under the Convention to impose a permanent state of emergency on
the
province with the pernicious consequences which that would entail for respect
for the
rule of law.”71 For its part the Government argued that “at the material time the
security
situation in Northern Ireland could still be described with justification as a public
emergency threatening the life of the nation”. It noted that “in the seven-week
period
leading up to the applicant’s arrest … thirteen murders had taken place in the
province”. There had also been numerous bombing incidents.72
The Court accepted the Government’s argument, noting that “the authorities
continued to be confronted with the threat of terrorist violence notwithstanding a
reduction in its incidence”. Referring to the “outbreak of deadly violence” in the
weeks
preceding the applicant’s detention, the Court stated that:
“This of itself confirms that there had been no return to normality since
the date of the Brannigan and McBride judgment such as to lead the Court
to controvert the authorities’ assessment of the situation in the province in
terms of threats which organised violence posed for the life of the
community and the search for a peaceful settlement.”73
With regard to the situation in South East Turkey, the Court concluded in the
Aksoy case that “the particular extent and impact of the PKK terrorist activity
[had]
undoubtedly created, in the region concerned, a ‘public emergency threatening
the life
of the nation’.”74 However, in the case of Sakik and Others, the Court importantly
stated
that it would be “working against the object and purpose of [article 15] if, when
assessing the territorial scope of the derogation concerned, it were to extend its
effects
to a part of Turkish territory not explicitly named in the notice of derogation”
submitted under article 15(3) to the Secretary-General of the Council of
Europe.75 As
the legislative decrees challenged in this case were applicable only to the region
where a
state of emergency had been proclaimed, which did not, according to the
derogation
notice, include Ankara, the derogation was “inapplicable ratione loci to the facts
of the
case”.76
71Eur. Court HR, Case of Marshall v. the United Kingdom, decision of 10 July 2001 on the admissibility, see
p. 7 of the unedited version of
the decision on the Court’s web site: http://hudoc.echr.coe.int
72Ibid., p. 6.
73Ibid., p. 9.
70.
75Eur. Court HR, Case of Sakik and Others v. Turkey, judgment of 26 November 1997, Reports 1997-VII, p.
2622, para. 39.
76Ibid., loc. cit.
It is for the State party invoking the right to derogate to prove that it is
faced with a public emergency as defined in the relevant treaty.
The ultimate purpose of derogations under international law is to enable
the States parties concerned to return to normalcy, i.e., to restore a
constitutional order in which human rights can again be fully guaranteed.
It is the right and duty of international monitoring bodies, in the cases
brought before them, to make an independent assessment of crisis
situations in the light of the relevant treaty provisions.
At the European level, however, a wide margin of appreciation is granted
to the Contracting States in deciding on the presence within their borders
of a “public emergency threatening the life of the nation”.
The crisis situation justifying the derogation must be so serious as to
actually constitute a threat to the life of the nation (universal and
European levels) or its independence or security (the Americas). This
excludes, for instance, minor riots, disturbances and mass
demonstrations.
National law must carefully define the situations in which a state of
emergency can be declared.
The exceptional nature of derogations mean that they must be limited in
time and space to what is strictly required by the exigencies of the
situation.
States parties cannot lawfully extend their exceptional powers beyond the
territories mentioned in their derogation notices.
Derogations under international human rights law must not adversely
affect the substance of rights, since these rights are inherent in the
human person. Derogations can only lawfully limit their full and effective
exercise.
3. Non-Derogable Rights and
Obligations in International
Human Rights Law
The structure of derogation provisions may lead to the belief that the only
rights from which no derogations can be made are those enumerated in article
4(2) of
the International Covenant, article 27(2) of the American Convention and article
15(2)
of the European Convention. However, the legal situation is more complex and
the
field of non-derogability also covers, for instance, rights and obligations that are
Lawyers 831
inherent in international human rights law as a whole or guaranteed under
international
humanitarian law. In view of the complexity and evolving nature of this subject,
only its
most salient features will be considered below.
*****
In spite of their non-derogability, human rights such as the right to life and the
right to freedom from torture and other forms of ill-treatment are frequently
violated.
Moreover, as repeatedly noted with concern by the Human Rights Committee,
the
domestic law of the States parties to the International Covenant on Civil and
Political
Rights does not always meet the requirements of article 4(2) and thus fails to
provide
absolute legal protection for some human rights in times of crisis.77
Article 4(2) of the International Covenant stipulates that:
“No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18
may be made under this provision.”
The articles enumerated in this provision protect the following rights:
_ the right to life – article 6;
_ the right to freedom from torture, cruel, inhuman and degrading treatment or
punishment, and medical or scientific experimentation without one’s free
consent –
article 7;
_ the right to freedom from slavery, the slave trade and servitude – article 8;
_ the right not to be imprisoned on the ground of inability to fulfil a contractual
obligation – article 11;
_ the right not to be subjected to retroactive legislation (ex post facto laws) –
article 15;
_ the right to recognition as a person before the law – article 16;
_ the right to freedom of thought, conscience and religion – article 18; and
_ the right not to be subjected to the death penalty – article 6 of the Second
Optional
Protocol.
Article 27(2) of the American Convention on Human Rights reads:
“The foregoing provision does not authorize any suspension of the
following articles: Article 3 (Right to Juridical Personality), Article 4 (Right
to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from
Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12
(Freedom of Conscience and Religion), Article 17 (Rights of the Family),
Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20
(Right to a Nationality), and Article 23 (Right to Participate in
77See, for example, the Committee’s comments in UN docs.: GAOR, A/48/40 (vol. I), p. 43, para. 184
(Tanzania); p. 101,
para. 459 (Dominican Republic); GAOR, A/53/40 (vol. I), p. 39, para. 241 (Uruguay); GAOR, A/56/40 (vol. I),
p. 32, para. 9(b)
(Trinidad and Tobago).
Government) or of the judicial guarantees essential for the protection of
such rights.”
Article 15(2) of the European Convention states:
“No derogation from Article 2, except in respect of deaths resulting from
lawful acts of war, or from Articles 3, 4 (paragraph 1) and 7 shall be made
under this provision.”
Furthermore, article 3 of Protocol No. 6 to the Convention relating to the
abolition of the death penalty stipulates that there shall be no derogation from
the
provisions of this Protocol under article 15 of the Convention. Lastly, the principle
of
ne bis in idem, as proclaimed in article 4 of Protocol No. 7 to the Convention, is
likewise
non-derogable under article 4(3) thereof.
The non-derogable rights under the European Convention are therefore:
_ the right to life – article 2;
_ the right to freedom from torture and from inhuman or degrading treatment or
punishment – article 3;
_ the right to freedom from slavery and servitude – article 4(1);
_ the right not to be subjected to retroactive penal legislation – article 7;
_ the right not to be subjected to the death penalty – article 3 of Protocol No. 6;
_ the principle of ne bis in idem or double jeopardy – article 4 of Protocol No. 7.
*****
A brief and non-exhaustive description will be given below of States’ duties
with regard to the major non-derogable rights. The cases chosen to illustrate the
legal
duties of States in this chapter are those of greatest relevance to emergency
situations
and/or the fight against hard crime and terrorism. For more details on the
interpretation of some of these rights such as the right to life, the right to
freedom from
torture, the prohibition of slavery, the right to freedom of thought, conscience
and
religion and the prohibition of discrimination, readers are referred to the relevant
chapters of this Manual.
In spite of their non-derogable nature, these rights tend in many cases to be
the most frequently violated in emergency situations, thereby rendering a return
to
normalcy more difficult. In such situations, the role of judges, prosecutors and
lawyers
in contributing to the effective protection of the individual becomes more crucial
than
ever, and their respective responsibilities must be exercised with full
independence and
impartiality lest the individual be left without legal protection.
3.3 The right to life
The fundamental right to life is non-derogable under all three treaties, which
means that it must be protected by law and that no person may at any time be
arbitrarily
killed. It is true that the exact extent of the protection afforded by article 6 of the
International Covenant, article 4 of the American Convention and article 2 of the
Lawyers 833
European Convention varies according to the specific treaty limitations on
imposition
of the death penalty, and, as pointed out by the Human Rights Committee, such
limitations are “independent of the issue of derogability”.78 Of the three treaties,
only
the European Convention defines the specific situations in which “deprivation of
life
shall not be regarded as inflicted in contravention of this Article”, namely “when
it
results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person
lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection”
(art. 2(2)).
According to the European Court of Human Rights, “the exceptions
delineated in paragraph 2 indicate that this provision extends to, but is not
concerned
exclusively with, intentional killing”. Paragraph 2 rather “describes the situations
where
it is permitted to ‘use force’ which may result, as an unintended outcome, in the
deprivation of life”.79 The term “absolutely necessary” indicates that “the force
used
must be strictly proportionate to the achievement of the aims set out in sub-
paragraphs
2(a), (b) and (c) of Article 2”.80 These examples may serve as useful indicators
for both
domestic judges and members of other international monitoring bodies who have
to
consider the use to force with a lethal outcome in connection with law
enforcement
activities.
The right to life as protected by international human rights law means, inter
alia, that States must at no time engage in, or condone, arbitrary or extrajudicial
killings
of human beings, and that, as set forth at length in Chapter 15, they have a legal
duty to
prevent, investigate, prosecute, punish and redress violations of the right to life.
The
legal duty to take positive steps effectively to protect the right to life is equally
valid in
times of public emergency.
States must at all times take positive steps to protect the right to life.
States must at no time participate in, or condone, the arbitrary or
extrajudicial taking of human life.
Even in public emergencies threatening the life of the nation, States have
a strict legal duty to prevent, investigate, prosecute, punish and redress
violations of the right to life.
78General Comment No. 29 (72), in UN doc. GAOR, A/56/40 (vol. I), p. 204, para. 7.
79Eur. Court HR, Case of McCann and Others v. the United Kingdom, Series A, No. 324, p. 46, para. 148.
80Ibid., p. 46, para. 149.
3.4 The right to freedom from torture and from

cruel, inhuman or degrading treatment or
punishment
The right to freedom from torture or other forms of ill-treatment is also
non-derogable in all three treaties (article 7 of the International Covenant, article
5(2) of
the American Convention and article 3 of the European Convention). This means
that
States may at no time resort to torture or to cruel, inhuman or degrading
treatment or
punishment in order, for instance, to punish or to extract confessions or
information
from suspected terrorists or other offenders. The Inter-American Court of Human
Rights has specified that, as in times of peace, the State remains the guarantor
of human
rights, including the rights of people deprived of their liberty, and is thus also
responsible for the conditions in detention establishments.81
*****
The European Court found that the combined and premeditated use “for
hours at a stretch” of the following five “disorientation” or “sensory deprivation”
techniques “amounted to a practice of inhuman and degrading treatment”
contrary to
article 3 of the European Convention: wall-standing, hooding, subjection to noise,
deprivation of sleep and deprivation of food and drink. These “techniques” were
used
in various interrogation centres in Northern Ireland in the early 1970s.82 The
Court also
found a violation of article 3 in the case of Tomasi v. France, in which the
applicant,
during a police interrogation that lasted for “a period of forty odd hours”, had
been
“slapped, kicked, punched and given forearm blows, made to stand for long
periods
and without support, hands handcuffed behind the back; he had been spat upon,
made
to stand naked in front of an open window, deprived of food, threatened with a
firearm
and so on”.83 The Court concluded that this treatment was “inhuman and
degrading”
contrary to article 3 of the European Convention, adding that “the requirements
of the
investigation and the undeniable difficulties inherent in the fight against crime,
particularly with regard to terrorism, cannot result in limits being placed on the
protection to be afforded in respect of the physical integrity of individuals”.84 The
treatment meted out to the applicant in the Aksoy case was, however, “of such a
serious
and cruel nature that it [could] only be described as torture”. The applicant, who
was
detained on suspicion of being involved in terrorist activities, had been subjected
to
“Palestinian hanging”, that is to say he had been “stripped naked, with his arms
tied
together behind his back, and suspended by his arms”. This ill-treatment, which
was
“deliberately inflicted” and “would appear to have been administered with the
aim of
obtaining admissions or information from the applicant”, had led to “a paralysis
of
both arms which lasted for some time”.85
*****
Lawyers 835
81Cf. I-A Court HR, Castillo Petruzzi et al. Case, judgment of May 30, 1999, Series C, No. 52, p. 219, para.
195.
41, para. 96, and pp. 66-67,
paras. 167-168.
108.
84Ibid., p. 42, para. 115.
64.
In the Castillo Petruzzi et al. case, the Inter-American Court of Human Rights
concluded that the combination of incommunicado detention for 36 and 37 days
and
the appearance in court of the persons in question “either blindfolded or hooded,
and
either in restraints or handcuffs” was in itself a violation of article 5(2) of the
Convention.86
In the same case, the Court concluded that the terms of confinement imposed
on the victims by the military tribunals “constituted cruel, inhuman and
degrading
forms of punishment” violating article 5 of the American Convention.87 According
to
the rulings of the military courts, the terms of incarceration “included
‘continuous
confinement to cell for the first year … and then forced labour, which sentences
they
[the alleged victims] are to serve in solitary-confinement cells chosen by the
Director of
the National Bureau of Prisons’” in Peru.88 In its reasoning the Court recalled its
jurisprudence, according to which “prolonged isolation and deprivation of
communication are in themselves cruel and inhuman punishment, harmful to the
psychological and moral integrity of the person and a violation of the right of any
detainee to respect for his inherent dignity as a human being.”89 According to the
Court, “incommunicado detention is considered to be an exceptional method of
confinement because of the grave effects it has on persons so confined.
‘Isolation from
the outside world produces moral and psychological suffering in any person,
places him
in a particularly vulnerable position, and increases the risk of aggression and
arbitrary
acts in prison.’”90 In its view, therefore, “incommunicado detention, … solitary
confinement in a tiny cell with no natural light, … a restrictive visiting schedule
… all
constitute forms of cruel, inhuman or degrading treatment in the terms of Article
5(2)
of the American Convention.”91 With regard to the use of force against detainees,
the
Court invoked its jurisprudence, according to which:
“Any use of force that is not strictly necessary to ensure proper behaviour
on the part of the detainee constitutes an assault on the dignity of the
person … in violation of Article 5 of the American Convention. The
exigencies of the investigation and the undeniable difficulties encountered
in the anti-terrorist struggle must not be allowed to restrict the protection
of a person’s right to physical integrity.”92
On the issue of torture see also, in particular, Chapter 8, section 2, and
Chapter 11, section 4.
86I-A Court HR, Castillo Petruzzi et al. Case, judgment of May 30, 1999, Series C, No. 52, p. 218, para. 192.
87Ibid., pp. 220-221, para. 198.
88Ibid., p. 219, para. 193.
89Ibid., p. 219, para. 194.
90Ibid., p. 219, para. 195.
91Ibid., p. 220, para. 197.
92Ibid., loc. cit.
The use of torture and of cruel, inhuman or degrading treatment or
punishment is prohibited at all times, including in time of war or any
other public emergency threatening the life of the nation.
The prohibition of torture and other forms of ill-treatment is thus also
strictly prohibited in the fight against terrorism and hard crime.
Torture or other forms of ill-treatment may not be used to extract
information or confessions from suspects.
Prolonged incommunicado detention amounts to a form of ill-treatment
prohibited by international law even in emergency situations.
3.5 The right to humane treatment
The right to humane treatment is made non-derogable by article 27(2) of the
American Convention on Human Rights, read in the light of article 5(2) according
to
which “all persons deprived of their liberty shall be treated with respect for the
inherent
dignity of the human person”.
On the same subject, article 10 of the International Covenant states that “all
persons deprived of their liberty shall be treated with humanity and with respect
for the
inherent dignity of the human person”. However, article 10 is not mentioned as a
non-derogable right in article 4(2) of the Covenant. Yet in General Comment No.
29
the Committee states its belief that “here the Covenant expresses a norm of
general
international law not subject to derogation. This is supported by the reference to
the
inherent dignity of the human person in the preamble of the Covenant and by
the close
connection between articles 7 and 10.”93
*****
The distinction made in the work of the Human Rights Committee between
articles 7 and 10 is not clear-cut. A violation of article 10(1) was found, for
example, in
the case of S. Sextus v. Trinidad and Tobago, in which the author complained of
his
conditions of detention: his cell measured a mere 9 feet by 6 feet and there was
no
integral sanitation but a simple plastic pail was provided as a toilet. A small hole
(8 by 8
inches) provided inadequate ventilation and, in the absence of natural light, the
only
light was provided by a fluorescent strip illuminated 24 hours a day. After his
death
sentence was commuted to 75 years’ imprisonment, the author had to share a
cell of the
same size with 9 to 12 other prisoners and, since there was only one bed, he had
to sleep
on the floor. In the absence of any comments by the State party, the Committee
relied
on the detailed account given by the author to find a violation of article 10(1).94
One of
many others cases involving a violation of article 10(1) was that of M.
Freemantle v.
Jamaica, which also concerned deplorable conditions of detention. The State
party failed
to refute the author’s claim that he was confined to a 2 metre square cell for 22
hours
Lawyers 837
93UN doc. GAOR, A/56/40 (vol. I), p. 205, para. 13(a).
94Communication No. 818/1998, S. Sextus v. Trinidad and Tobago (Views adopted on 16 July 2001), in UN
doc. GAOR,
A/56/40 (vol. II), p. 117, para. 7.4, read in conjunction with p. 112, paras. 2.2 and 2.4.
every day, “spent most of his waking hours in enforced darkness”, remained
isolated
from the other men most of the time, and was not permitted to work or to
undertake
education.95
The positive right of all persons deprived of their liberty to be treated
humanely is to be guaranteed at all times, including in emergency
situations.
The right to be treated humanely implies, inter alia, that people deprived
of their liberty must be held in conditions respectful of their human
dignity.
3.6 The right to freedom from slavery and servitude
The right to freedom from slavery and servitude is non-derogable under the
International Covenant (arts. 4(2) and 8(1) and (2)) and the European
Convention (arts.
15(2) and 4(1)). However, only article 8(1) of the International Covenant
specifies
expressis verbis that “slavery and the slave-trade in all their forms shall be
prohibited”.
According to article 27(2) of the American Convention, on the other hand,
article 6 as a whole is non-derogable, which means that not only is the right not
to be
subjected to slavery, involuntary servitude, slave trade and traffic in women
non-derogable but also the right not to be required to perform forced and
compulsory
labour.
Like the articles regulating the right to life, the articles defining the right not to
be subjected to forced and compulsory labour contain limitation provisions that
exempt from the definition of “forced or compulsory labour” certain kinds of
labour
such as services exacted in times of emergency, danger or calamity that
threaten the
well-being of the community. To the extent that the labour required falls within
this
category, it can, of course, also be required in public emergencies (for the texts
of the
relevant provisions, see article 8(3)(c)(iii) of the International Covenant, article
6(3)(c)
of the American Convention and article 4(3)(c) of the European Convention).
It is also noteworthy that, under articles 34 and 35 of the Convention on the
Rights of the Child, which contains no derogation provision, the States parties
have a
legal duty both to protect children from sexual exploitation and abuse and “to
prevent
the abduction of, the sale of or traffic in children for any purpose or in any form”.
These legal obligations are reinforced by the Optional Protocol to the Convention
on
the Rights of the Child on the Sale of Children, Child Prostitution and Child
Pornography, which entered into force on 18 January 2002.96
GAOR, A/55/40
(II), p. 19, para. 7.3.
96For more information about this Optional Protocol, see the United Nations web site:
www.unhchr.ch/html/menu2/dopchild.htm
Slavery, the slave trade, servitude, and trafficking in women and children
are strictly prohibited at all times, including in public emergencies
threatening the life of the nation (at the universal and European levels) or
the independence or security of the State (in the Americas).
Even in times of armed conflict or in other kinds of emergencies, States
are therefore under a legal obligation to take positive measures to
prevent,
investigate, prosecute and punish such unlawful practices as well as to
provide redress to the victims.
3.7 The right to freedom from ex post facto laws
and the principle of ne bis in idem
3.7.1 The prohibition of ex post facto laws
The right not to be held guilty of any criminal offence on account of an act or
omission that did not constitute a criminal offence when committed is
guaranteed by
article 15(1) of the International Covenant, article 9 of the American Convention
and
article 7(1) of the European Convention. The same provisions also prohibit the
imposition of a heavier penalty than that applicable at the time when the offence
was
committed. Moreover, article 15(1) of the International Covenant and article 9 of
the
American Convention guarantee the right of the guilty person to benefit from a
lighter
penalty introduced after the commission of the offence.
Although the temptation may be considerable in crisis situations to introduce
retroactive legislation to deal with particularly reprehensible acts, this is strictly
forbidden under international human rights law. The purpose of this essential
rule is
obvious: a person must be able to foresee at any given time – including in
emergency
situations – the consequences of any specific action, including possible penal
prosecution and associated sanctions (the principle of foreseeability). Any
other
situation would entail intolerable legal insecurity in a State governed by the rule
of law,
which presupposes respect for human rights.
Article 15(2) of the International Covenant nonetheless makes an exception
for “the trial and punishment of any person for any act or omission which, at the
time
when it was committed, was criminal according to the general principles of law
recognized by the community of nations”. Article 7(2) of the European
Convention
contains a virtually identical provision, although it refers to “civilized nations”
rather
than to “the community of nations”.
*****
The Human Rights Committee concluded that article 15(1) was violated in the
case of Weinberger v. Uruguay, in which the victim had been convicted on the
basis of the
retroactive application of penal law. The author was convicted and sentenced to
eight
years’ imprisonment under the Military Penal Code for “subversive association”
“with
aggravating circumstances of conspiracy against the Constitution”. The
conviction was
Lawyers 839
allegedly based, inter alia, on the victim’s “membership in a political party which
had
lawfully existed while the membership lasted”.97
*****
In its judgment in the case of Kokkinakis v. Greece, the European Court held
that article 7(1) of the European Convention not only outlaws “the retrospective
application of the criminal law to an accused’s disadvantage. It also embodies,
more
generally, the principle that only the law can define a crime and prescribe a
penalty
(nullum crimen, nulla poena sine lege) and the principle that the criminal law
must not be
extensively construed to an accused’s detriment, for instance by analogy; it
follows
from this that an offence must be clearly defined in law. This condition is
satisfied
where the individual can know from the wording of the relevant provision and, if
need
be, with the assistance of the courts’ interpretation of it, what acts and omissions
will
make him liable.”98 In other words, the unreasonable uncertainty of legal
provisions
criminalizing a certain conduct also falls foul of the requirements of article
7(1) of
the European Convention. However, whenever the retroactive application of
criminal
law is to the accused person’s advantage rather than to his or her
disadvantage, there
has been no violation of article 7(1) of the Convention.99
Although preventive measures are not per se covered by article 15(1)of the
International Covenant or articles 9 and 7(1) of the American and European
Convention respectively, they can in special circumstances be considered to
constitute
a “penalty” for the purposes of these provisions. The European Court of Human
Rights concluded in the case of Welch v. the United Kingdom that a confiscation
order
constituted a “penalty” within the meaning of article 7(1) although the
Government
considered that it was a preventive measure falling outside the ambit of article
7(1).100
The applicant had been convicted of a drug offence and sentenced to an
ultimately
20-year-long prison term; in addition, the trial judge had issued a confiscation
order
under a law that had entered into force after the applicant had committed his
criminal
acts.101 In default of the payment of the relevant sum, the applicant was liable to
serve a
consecutive prison sentence of two years.102
3.7.2 The principle of ne bis in idem
The principle of ne bis in idem has been made expressly non-derogable only
under the European Convention on Human Rights and then only with regard to
criminal proceedings taking place in one and the same country (see article 4 of
Protocol
No. 7 to the Convention). According to article 4(1) of the Protocol:
97Communication No. R.7/28, Weinberger v. Uruguay (Views adopted on 29 October 1978), in UN doc.
GAOR, A/36/40,
pp. 118-119, paras. 12 and 16.
52.
99Eur. Court HR, Case of G. v. France, judgment of 27 September 1995, Series A, No. 325-B, p. 38, paras.
24-27.
100Eur. Court HR, Case of Welch v. the United Kingdom, judgment of 9 February 1995, Series A, No. 307-A,
p. 14, para. 35.
101Ibid., p. 7, para. 9.
102Ibid., p. 7, paras. 9-10.
“No one shall be liable to be tried or punished again in criminal
proceedings under the jurisdiction of the same State for an offence for
which he has already been finally acquitted or convicted in accordance with
the law and penal procedure of that State.”
The proceedings can nevertheless be reopened on certain conditions “if there
is evidence of new or newly discovered facts, or if there has been a fundamental
defect
in the previous proceedings, which could affect the outcome of the case” (art.
4(2) of
Protocol No. 7).
The European Court of Human Rights concluded that the principle of ne bis in
idem had been violated in the case of, for instance, Gradinger v. Austria. The
applicant was
first convicted by an Austrian Regional Court of causing death by negligence
while
driving a car and sentenced to pay a fine. In addition, a district authority fined
him
under the Road Traffic Act for driving under the influence of alcohol.103 The
Regional
Court, however, had concluded that the applicant had not been drinking to such
an
extent that he could be considered to have caused death by negligence under
the
influence of drink within the meaning of the Criminal Code.104
The principle of ne bis in idem as contained in article 14(7) of the International
Covenant is applicable to both convictions and acquittals, while the
corresponding
provision in article 8(4) of the American Convention concerns only acquittals “by
a
nonappealable judgment”.
Every person has the right not to be held guilty of any criminal offence for
an act or omission that was not a criminal offence when committed.
At the European level, the prohibition of the retroactive application of
criminal law also means that a criminal offence must be clearly defined in
law and that the law cannot be interpreted extensively to the accused
person’s disadvantage.
International human rights law also prohibits the retroactive application
of penalties to the disadvantage of the convicted person.
The International Covenant on Civil and Political Rights and the
American Convention on Human Rights further guarantee the right of a
guilty person to benefit from a lighter penalty introduced after the
commission of the offence.
The principle of ne bis in idem is non-derogable under the European
Convention on Human Rights and protects against double jeopardy in
respect of proceedings taking place in one State.
These rights must be effectively guaranteed at all times, including in time
of war or any other public emergency.
Lawyers 841
103Eur. Court HR, Case of Gradinger v. Austria, judgment of 23 Octboer 1995, Series A, No. 328-C, p. 55,
paras. 7-9.
104Ibid., p. 55, para. 8.
3.8 The right to recognition as a legal person

Every person’s non-derogable right to juridical personality is expressly
guaranteed by articles 16 and 4(2) of the International Covenant and articles 3
and 27(2)
of the American Convention. The right to recognition as a person before the law
is of
fundamental importance in that it not only entitles every person to have rights
and
duties but also vests in the person concerned the right to vindicate his or her
rights and
freedoms before national courts and other competent organs and moreover
allows the
person in many instances to bring complaints to international monitoring bodies.
The
fundamental nature of the right to juridical personality as a precondition for the
enjoyment and exercise of human rights is recognized by the American
Convention
which logically places it before the right to life.
*****
In the context of article 16 of the International Covenant, the Human Rights
Committee requested that Egypt submit information on the legal status of
Muslims
who convert to another religion since it appeared that such Muslims were
“legally dead”
under the Muslim Code of Religious Law.105 Article 16 was also examined in a
case
against Argentina concerning a child of disappeared persons who was adopted
by a
nurse. The Committee did not accept the claim that the girl’s right to juridical
personality had been violated in this case, since the Argentine courts had
“endeavoured
to establish her identity and issued her identity papers accordingly”.106 In the
view of
the Inter-American Commission on Human Rights, on the other hand, the
removal of
children of disappeared persons is a violation of their right “to be recognized
legally as
persons” in accordance with article 3 of the American Convention.107
Every human being has the right at all times to be recognized as a legal
person before the law. No circumstances or beliefs can justify any
limitation on this fundamental right.
3.9 The right to freedom of thought, conscience
and religion
Everybody’s right to freedom of thought, conscience and religion – including
the freedom to hold beliefs – is non-derogable under article 18 of the
International
Covenant, read in conjunction with article 4(2), while freedom of conscience and
religion is non-derogable in the Americas by virtue of articles 12 and 27(2) of the
American Convention.
106Communication No, 400/1990, D. R. Mónaco de Gallichio, on her own behalf and on behalf of her
granddaughter X. Vicario (Views
adopted on 3 April 1995), in UN doc. GAOR, A/50/40 (vol. II), p. 14, para. 10.2.
107A study about the situation of minor children of disappeared persons who were separated from their
parents and who are
claimed by members of their legitimate families, in OAS doc. OEA/Ser.L/V/II.74, doc. 10, rev. 1, Annual
Report of the Inter-American
Commission on Human Rights 1987-1988, p. 340.
The substance of these rights was considered in Chapter 12 and will not
therefore be analysed again in this context. It should, however, be pointed out
that both
article 18(3) of the International Covenant and article 12(3) of the American
Convention authorize certain limitations on the freedom to manifest one’s
religion or
beliefs, limitations that are also permissible in public emergencies. But even in
such
serious crisis situations, the principle of legality must be respected in that the
limitations
have to be “prescribed by law” and be “necessary to protect public safety, order,
health,
or morals or the (fundamental) rights and freedoms of others”.108 Limitations on
the
right to manifest one’s freedom of thought, conscience and religion must not
therefore
be imposed for any other reason, even in armed conflicts or other serious crisis
situations.109
American Convention on Human Rights, the right to freedom of
thought, conscience and religion must be guaranteed at all times and
cannot be derogated from in any circumstances.
In time of war or any other public emergency, the right to manifest one’s
religion and beliefs must be determined exclusively by the ordinary
limitation provisions.
3.10 The right not to be imprisoned merely
on the ground of inability to fulfil a
contractual obligation
The right not to be “imprisoned merely on the ground of inability to fulfil a
contractual obligation” is guaranteed by article 11 of the International Covenant
and is
non-derogable pursuant to article 4(2). With regard to Gabon, the Human Rights
Committee expressed “concern about the practice of putting people in prison for
civil
debts, which is in breach of article 11 of the Covenant”. The State party was told
that it
must abolish imprisonment for debt.110 The Committee also asked why the
Government of Madagascar “had not repealed the ordinance sanctioning failure
to
fulfil a contractual obligation by imprisonment”, which was not in conformity with
article 11.111 In other words, this right must be ensured in all States at all times,
independently of the stage of development of the country concerned.
The right not to be imprisoned for being unable to comply with
contractual obligations must be guaranteed by all States at all times,
including in time of war or public emergency.
Lawyers 843
108Article 18(3) of the International Covenant contains the term “fundamental” but not article 12(3) of the
American
Convention.
109See also General Comment No. 29 of the Human Rights Committee, in UN doc. GAOR, A/56/40 (vol. I), p.
204, para. 7.
3.11 The rights of the family

The rights of the family are only expressly made non-derogable in the
American Convention (article 27(2) read in conjunction with article 17).
According to
article 17(1), “the family is the natural and fundamental group unit of society
and is
entitled to protection by society and the state.” This article also guarantees “the
right of
men and women of marriageable age to marry and to raise a family” (art. 17(2))
and
stipulates that “no marriage shall be entered into without the free and full
consent of
the intending spouses” (art. 17(3)). It further imposes a duty on States parties to
“take
appropriate steps to ensure the equality of rights and the adequate balancing of
responsibilities of the spouses as to marriage, during marriage, and in the event
of its
dissolution” (art. 17(4)). Lastly, it states that “the law shall recognize equal rights
for
children born out of wedlock and those born in wedlock” (art. 17(5)).
Although the right of the family as contained in article 23 of the International
Covenant and article 12 of the European Convention has not been made
non-derogable, it is difficult to see for what purpose it could ever be strictly
necessary in
a public emergency to derogate from this right. Rights corresponding to those
contained in article 17 of the American Convention are also recognized in article
16 of
the Convention on the Elimination of All Forms of Discrimination against Women,
a
treaty that makes no provision for derogation.
The rights of the family, including the right of men and women to marry
with their free and full consent and the right to raise a family, have been
made expressly non-derogable under the American Convention on
Human Rights and must be protected at all times.
3.12 The right to a name
The right to a name is guaranteed by article 18 of the American Convention,
according to which “every person has the right to a given name and to the
surnames of
his parents or that of one of them. The law shall regulate the manner in which
this right
shall be ensured for all, by the use of assumed names if necessary.” The Inter-
American
Commission on Human Rights expressed the view that the minor children of
disappeared parents had been denied the right to their identity and name
contrary to
article 18 by virtue of their separation from their parents.112
The right to a name is not expressly guaranteed by either the International
Covenant or the European Convention but is recognized in articles 7 and 8 of the
Convention on the Rights of the Child. This Convention makes no provision for
derogations and it has been pointed out by the Human Rights Committee that,
“as
article 38 of the Convention clearly indicates, the Convention is applicable in
parents and who are
Commission on Human Rights 1987-1988, p. 340.
emergency situations”.113 Under article 38(1) of the Convention on the Rights of
the
Child, “the States Parties undertake to respect and to ensure respect for rules of
international humanitarian law applicable to them in armed conflicts which are
relevant
to the child.”
The right of every person to a name under the American Convention on
Human Rights, and the right of every child to a name under the
Convention on the Rights of the Child, must be guaranteed at all times,
including in time of war or any other public emergency.
3.13 The rights of the child
According to article 19 of the American Convention, “every minor child has
the right to the measures of protection required by his condition as a minor on
the part
of his family, society, and the state”. The Inter-American Commission on Human
Rights considers that it amounts to a violation of this article to remove children
from
their disappeared parents.114 The Commission also concluded that this provision
was
violated when the Peruvian Armed Forces kept the four minor children of former
President García under house arrest for several days.115
The right of the child to special measures of protection is also guaranteed by
article 24 of the International Covenant, including the right to “be registered
immediately after birth”, the right to a name and the right to acquire a
nationality.
Again, this provision is not made non-derogable expressis verbis, but the duty to
provide
special protection for minors is particularly significant in times of societal
upheaval.
Among the various provisions of the Convention on the Rights of the Child
that impose duties on States parties to take special measures to protect the
child, special
reference should be made to article 19, which requires them to take all
appropriate
measures to protect the child “from all forms of physical or mental violence”,
and
article 34, which requires them to “take all appropriate national, bilateral and
multilateral measures” to prevent the sexual exploitation and abuse of the child.
As the
Convention on the Rights of the Child contains no derogation provision, there is a
presumption in favour of its being applicable at all times, including in emergency
situations. In any event, all forms of physical or mental ill-treatment of the child
committed or condoned by the State fall under the general prohibition of torture
and
other forms of ill-treatment.
Lawyers 845
113General Comment No. 29, in UN doc. GAOR, A/56/40 (vol. I), p. 208, footnote e.
parents and who are
Commission on Human Rights 1987-1988, p. 340
115Report No. 1/95, Case No. 11.006 v. Peru, 7 February 1995, in OAS doc. OEA/Ser.L/V/II.88, doc. 9 rev.,
Annual Report of the
Inter-American Commission on Human Rights 1994, p. 101.
The right of the minor child to measures of special protection has been
made expressly non-derogable in the Americas.
The child has the right to enjoy full and effective protection of all
non-derogable rights, and special measures must be taken at all times,
including in time of war or other public emergency, to protect the child
against all forms of ill-treatment and exploitation.
3.14 The right to a nationality
Pursuant to article 20(1) and (2) of the American Convention, “every person
has the right to a nationality” and “every person has the right to the nationality
of the
state in whose territory he was born if he does not have the right to any other
nationality”. Article 20(3) stipulates that “no one shall be arbitrarily deprived of
his
nationality or of the right to change it”. Under the International Covenant, only
the
child has the right to a nationality (cf. article 24(3) of the Covenant and
subsection 3.13
supra).
The Inter-American Court of Human Rights “has defined nationality as ‘the
political and legal bond that links a person to a given state and binds him to it
with ties
of allegiance and loyalty, entitling him to diplomatic protection from that
state’”.116 In
its view, however, “‘international law does impose certain limits on the broad
powers
enjoyed by the states’ and…‘nationality is today perceived as involving the
jurisdiction
of the state as well as human rights issues’.”117
With reference to the exceptional powers of the Chilean President to strip
Chileans of their nationality in emergency situations during the military
dictatorship in
the 1970s, the Inter-American Commission on Human Rights stated that since all
emergencies are, by nature, transitory, it could not see how “it is possible or
necessary
to take measures of an irreversible nature, that will affect a citizen and his family
for the
rest of their lives”.118
The right to a nationality is non-derogable in the Americas and must
therefore be guaranteed at all times.
116I-A Court HR, Castillo Petruzzi Case, judgment of May 30, 1999, Series C, No. 52, p. 182, para. 99.
117Ibid., p. 183, para. 101.
118OAS doc. OEA/Ser.L/V/II.40, doc. 10, Inter-American Commission on Human Rights - Third Report on the
Situation of Human Rights
in Chile (1977), p. 80, para. 8.
3.15 The right to participate in government
Article 23 of the American Convention guarantees the right of every citizen:
_ “To take part in the conduct of public affairs, directly or through freely chosen
representatives” – article 23(1)(a);
_ “To vote and to be elected in genuine periodic elections, which shall be by
universal
and equal suffrage and by secret ballot that guarantees the free expression of
the will
of the voters” – article 23(1)(b); and
_ “To have access, under general conditions of equality, to the public service of
his
country” – article 23(1)(c).
Article 23(2) makes it possible to regulate the exercise of these rights, but
“only on the basis of age, nationality, residence, language, education, civil and
mental
capacity, or sentencing by a competent court in criminal proceedings”. The
inclusion of
the right to participate in government in the list of non-derogable rights in article
27(2)
of the American Convention is an expression of the conviction of the American
States
of the fundamental importance of maintaining a democratic constitutional order
for the
purpose of meeting the exigencies of emergency situations. The corresponding
rights in
article 25 of the International Covenant have not been made non-derogable. The
same
applies to the more limited rights contained in article 3 of Protocol No. 1 to the
European Convention.
The right to participate in government must be guaranteed at all times in
the Americas, including in public emergencies threatening the
independence or security of the States parties to the American Convention
on Human Rights.
3.16 Non-derogable rights and the right to
effective procedural and judicial protection
To ensure full and effective protection of non-derogable rights in emergency
situations, it is not sufficient to make them non-derogable per se: these rights
must, in
addition, be accompanied by the availability at all times of effective
domestic
remedies to alleged victims of violations of these rights. In General
Comment No.
29 on article 4 of the International Covenant, the Human Rights Committee
states that:
“It is inherent in the protection of rights explicitly recognized as
non-derogable in article 4, paragraph 2, that they must be secured by
procedural guarantees, including often judicial guarantees. The provisions
of the Covenant relating to procedural safeguards may never be made
subject to measures that would circumvent the protection of
non-derogable rights. Article 4 may not be resorted to in a way that would
result in derogation from non-derogable rights. Thus, for example, as
article 6 of the Covenant is non-derogable in its entirety, any trial leading to
the imposition of the death penalty during a state of emergency must
Lawyers 847
conform to the provisions of the Covenant, including all the requirements
of articles 14 and 15.”119
With regard the principle of legality and the rule of law, the Committee states
that:
“16. Safeguards related to derogation, as embodied in article 4 of the
Covenant, are based on the principles of legality and the rule of law
inherent in the Covenant as a whole. As certain elements of the right to
a fair trial are explicitly guaranteed under international humanitarian law
during armed conflict, the Committee finds no justification for derogation
from these guarantees during other emergency situations. The Committee
is of the opinion that the principles of legality and the rule of law
require that fundamental requirements of fair trial must be respected
during a state of emergency. Only a court of law may try and convict a
person for a criminal offence. The presumption of innocence must be
respected. In order to protect non-derogable rights, the right to take
proceedings before a court to enable the court to decide without delay on
the lawfulness of detention, must not be diminished by a State party’s
decision to derogate from the Covenant.”120
*****
In addition to containing a long list of rights that cannot in any circumstances
be derogated from, article 27(2) of the American Convention in Human Rights
makes
non-derogable “the judicial guarantees essential for the protection of such
rights”. This
phrase, which has taken on singular importance in the jurisprudence of the
Inter-American Court of Human Rights, was adopted by the 1969 Specialized
Inter-American Conference in response to a proposal by the United States.121
With regard to the meaning of the term “judicial guarantees essential for the
protection” of non-derogable rights, the Inter-American Court has held that:
“Guarantees are designed to protect, to ensure or to assert the entitlement
to a right or the exercise thereof. The States Parties not only have the
obligation to recognize and to respect the rights and freedoms of the
persons, they also have the obligation to protect and ensure the exercise of
such rights and freedoms by means of the respective guarantees (art. 1.1),
that is, through suitable measures that will in all circumstances ensure the
effectiveness of these rights and freedoms.”122
However, “the determination as to what judicial remedies are ‘essential’ for
the protection of the rights which may not be suspended will differ depending
upon the
rights that are at stake. The ‘essential’ judicial guarantees necessary to
guarantee the
rights that deal with the physical integrity of the human person must of necessity
differ
121OAS doc. OEA/Ser.K/XVI/1.2, Conferencia Especializada Inter-Americana sobre Derechos Humanos, San
José, Costa Rica,
7-22 de noviembre de 1969, Actas y Documentos, p. 448.
122I-A Court HR, Advisory Opinion OC-8/87 of January 30, 1987, Habeas Corpus in Emergency Situations
(arts. 27(2), 25(1) and 7(6)
American Convention on Human Rights), Series A, No. 8, pp. 40-41, para. 25.
from those that seek to protect the right to a name, for example, which is also
non-derogable.”123 It follows that “essential” judicial remedies within the
meaning of
article 27(2) “are those that ordinarily will effectively guarantee the full exercise
of the
rights and freedoms protected by that provision and whose denial or restriction
would
endanger their full enjoyment”.124 However:
“The guarantees must be not only essential but also judicial. The
expression ‘judicial’ can only refer to those judicial remedies that are truly
capable of protecting these rights. Implicit in this conception is the active
involvement of an independent and impartial judicial body having the
power to pass on the lawfulness of measures adopted in a state of
emergency.”125
It thus remained for the Court to decide whether the guarantees contained in
articles 25(1) and 7(6) of the Convention “must be deemed to be among those
‘judicial
guarantees’ that are ‘essential’ for the protection of the non-derogable rights”.126
Article
25(1) of the American Convention reads:
“Everyone has the right to simple and prompt recourse, or any other
official duties.”
Article 7(6) provides that:
“Anyone who is deprived of his liberty shall be entitled to recourse to a
competent court, in order that the court may decide without delay on the
lawfulness of his arrest or detention and order his release if the arrest or
detention is unlawful. In States Parties whose laws provide that anyone
who believes himself to be threatened with deprivation of his liberty is
entitled to recourse to a competent court in order that it may decide on the
lawfulness of such threat, this remedy may not be restricted or abolished.
The interested party or another person in his behalf is entitled to seek these
remedies.”
With regard to article 25(1), the Court concluded that it “gives expression to
the procedural institution known as ‘amparo’, which is a simple and prompt
remedy
designed for the protection of all of the rights recognized by the constitutions
and laws
of the States Parties and by the Convention.” Clearly, therefore, “it can also be
applied
to those that are expressly mentioned in Article 27(2) as rights that are non-
derogable in
emergency situations”.127 Article 7(6) was just one of the components of the
institution
called “amparo” protected by article 25(1).128 With regard to the fundamental
Lawyers 849
123Ibid., p. 41, para. 28.
124Ibid., p. 42, para. 29.
126Ibid., p. 42, para. 31.
127Ibid., pp. 42-43, para. 32.
128Ibid., p. 44, para. 34.
importance of the writ of habeas corpus in protecting a person’s right to life and
physical
integrity, the Court stated:
“35. In order for habeas corpus to achieve its purpose, which is to obtain
a judicial determination of the lawfulness of a detention, it is necessary that
the detained person be brought before a competent judge or tribunal with
jurisdiction over him. Here habeas corpus performs a vital role in ensuring
that a person’s life and physical integrity are respected, in preventing his
disappearance or the keeping of his whereabouts secret and in protecting
him against torture or other cruel, inhumane, or degrading punishment or
treatment.
36. This conclusion is buttressed by the realities that have been the
experience of some of the peoples of this hemisphere in recent decades,
particularly disappearances, torture and murder committed or tolerated by
some governments. This experience has demonstrated over and over again
that the right to life and to humane treatment are threatened whenever the
right to habeas corpus is partially or wholly suspended.”129
The Court therefore concluded “that writs of habeas corpus and of
‘amparo’ are among those judicial remedies that are essential for the protection
of
various rights whose derogation is prohibited by Article 27(2) and that serve,
moreover,
to preserve legality in a democratic society”.130
With regard to article 25(1) of the Convention, the Court has furthermore
ruled that the absence of an effective remedy for a violation of a right
guaranteed by the
Convention is by itself a violation of the Convention. A remedy must be “truly
effective” and whenever it “proves illusory because of the general conditions
prevailing
in the country, or even in the particular circumstances of a given case, [it]
cannot be
considered effective”.131 In “normal circumstances” these conclusions “are valid
with
respect to all the rights recognized by the Convention”. However, in the Court’s
view:
“it must also be understood that the declaration of a state of emergency
—whatever its breadth or denomination in internal law— cannot entail the
suppression or ineffectiveness of the judicial guarantees that the
Convention requires the States Parties to establish for the protection of the
rights not subject to derogation or suspension by the state of
emergency.”132
Moreover, according to the Court, “the concept of due process of law
expressed in Article 8 of the Convention should be understood as applicable, in
the
main, to all the judicial guarantees referred to in the American Convention, even
during
a suspension governed by Article 27 of the Convention.”133 Reading article 8
together
with articles 7(6), 25 and 27(2) of the Convention
129Ibid., p. 44, paras. 35-36.
131I-A Court HR, Advisory Opinion OC-9/87 of October 6, 1987, Judicial Guarantees in States of Emergency
(arts. 27(2), 25 and 8 of the
American Convention on Human Rights), Series A, No. 9, p. 33, para. 24.
132Ibid., pp. 33-34, para. 25.
133Ibid., p. 35, para. 29.
“leads to the conclusion that the principles of due process of law cannot be
suspended in states of exception insofar as they are necessary conditions
for the procedural institutions regulated by the Convention to be
considered judicial guarantees. This result is even more clear with respect
to habeas corpus and amparo, which are indispensable for the protection
of the human rights that are not subject to derogation.”134
In a paragraph summing up its basic conclusions on the question of judicial
guarantees the Court held that:
“the judicial guarantees essential for the protection of the human rights not
subject to derogation, according to Article 27(2) of the Convention, are
those to which the Convention expressly refers in Articles 7(6) and 25(1),
considered within the framework and the principles of Article 8, and also
those necessary to the preservation of the rule of law, even during the state
of exception that results from the suspension of guarantees.”135
These interpretative criteria were later applied in the Neira Alegría et al. case, in
which the Court concluded that Peru had, to the detriment of three persons,
violated
the right to habeas corpus guaranteed by article 7(6) in relation to the
prohibition in article
27(2) of the American Convention. In this case “the control and jurisdiction of the
armed forces over the San Juan Bautista Prison translated into an implicit
suspension of
the habeas corpus action, by virtue of the application of the Supreme Decrees
that
imposed the state of emergency and the Restricted Military Zone status.”136 The
quelling of a riot in the prison concerned had resulted in the death of numerous
inmates. Habeas corpus proceedings were brought on behalf of Mr. Neira-Alegría
and
two other prisoners who disappeared following the riot. The habeas corpus
applications
were, however, dismissed on the ground that the petitioners had not proved
that the
inmates had been abducted, that the incidents were investigated by the military
courts
and that “such occurrences were outside the scope of the summary of habeas
corpus
procedure”.137
In international human rights law, the principle of legality and rule of
law must be guaranteed at all times, including in public emergencies
threatening the life of the nation (International Covenant and European
Convention) or the security or independence of the State (American
Convention). This means that, in a constitutional order
respectful of human rights and fundamental freedoms,
law governs the conduct both of the State and of
individuals.
Lawyers 851
134Ibid., p. 35, para. 30.
135Ibid., p. 39, para. 38.
136I-A Court HR, Neira Alegría et al. Case, judgment of January 19, 1995, OAS doc. OAS/Ser.L/V/III.33, doc. 4,
Annual Report of the
137Ibid., p. 59, para. 79. For a violation of articles 7(6) and 25 of the American Convention , see also I-A
Court HR, Suárez Rosero
case, judgment of November 12, 1997, Series C, No. 35, pp 72-75, paras. 57-66.
Non-derogable rights must be fully protected in such emergency
situations.
To this end, States must at all times provide effective domestic
remedies allowing alleged victims to vindicate their rights before
domestic courts or other independent and impartial authorities. No
derogatory measures, however lawful, are allowed to undermine the
efficiency of these remedies.
The right to be tried by an independent and impartial tribunal is
absolute under the International Covenant on Civil and Political Rights
in cases in which criminal proceedings may result in the imposition of
capital punishment. Such proceedings must at all times respect all
the due process guarantees contained in article 14 of the Covenant which
are also, to that extent, non-derogable. They must, of course, also be
consistent with the prohibition of retroactive criminal law defined in the
non-derogable provisions of article 15 of the Covenant.
At the American level, domestic remedies to ensure the full enjoyment of
non-derogable rights must be judicial in nature, such as the writ of
habeas corpus and amparo, and the proceedings concerned must
respect the principles of due process of law. These principles are
therefore to that extent also non-derogable under the American
Convention on Human Rights.
4. Derogable Rights and the
Condition of Strict Necessity
Both article 4(1) of the International Convent and article 15(1) of the
European Convention lay down the principle of strict proportionality, which
means
that, in a public emergency threatening the life of the nation, the derogating
State may
take measures derogating from its legal obligations only “to the extent strictly
required
by the exigencies of the situation”. Under article 27(1) of the American
Convention, the
State concerned may take such measures only “to the extent and for the period
of time
strictly required by the exigencies of the situation”. As shown below, however,
the
specification as to the time element in article 27(1) does not add anything of
substance
to what is already implied by the condition of strict necessity contained in
articles 4(1)
of the Covenant and article 15(1) of the European Convention. Lastly, article 30
of the
European Social Charter, 1961, and article F of the European Social Charter,
1996
(Revised), stipulate that any derogatory measures taken must be limited “to the
extent
strictly required by the exigencies of the situation”.
4.1 General interpretative approach
4.1.1 Article 4(1) of the International Covenant on
Civil and Political Rights
The Human Rights Committee has observed that the principle of strict
proportionality is “a fundamental requirement for any measures derogating from
the
Covenant” and that it is a requirement that relates “to the duration,
geographical
coverage and material scope of the state of emergency and any measures of
derogation
resorted to because of the emergency. Derogation from some Covenant
obligations in
emergency situations is clearly distinct from restrictions or limitations allowed
even in
normal times under several provisions of the Covenant. Nevertheless, the
obligation to
limit any derogations to those strictly required by the exigencies of the situation
reflects
the principle of proportionality which is common to derogation and limitation
powers.”138 Moreover, the Committee points out that:
“The mere fact that a permissible derogation from a specific provision
may, of itself, be justified by the exigencies of the situation does not
obviate the requirement that specific measures taken pursuant to the
derogation must also be shown to be required by the exigencies of the
situation. In practice, this will ensure that no provision of the Covenant,
however validly derogated from, will be entirely inapplicable to the
behaviour of a State party.”139
Furthermore, the enumeration of non-derogable rights in article 4(2) cannot
justify, even where a threat to the life of the nation exists, an a contrario
argument to the
effect that unlimited derogations are permissible from rights not contained in
that
provision, since “the legal obligation to narrow down all derogations to those
strictly
required by the exigencies of the situation establishes both for States parties and
for the
Committee a duty to conduct a careful analysis under each article of the
Covenant
based on an objective assessment of the actual situation.”140
It is clear from this statement that the Committee will make its own
assessment of the strict necessity of any derogatory measures taken. The
Committee
thereby confirms the view adopted in the Landinelli Silva and Others case
considered in
the early years of its work. Although the facts of that case, which concerned
drastic
limitations on the political rights of members of certain political groups, were not
considered ultimately under article 4 of the Covenant, the Committee made a
hypothetical examination of the strict necessity of the impugned measures on
the
assumption that an emergency situation existed in Uruguay.141
The Committee has on various occasions raised doubts regarding
compatibility with the condition of strict proportionality when considering the
periodic
reports of States parties. For example, it expressed “deep concern at the
continued state
of emergency prevailing in Israel, which has been in effect since its
independence” and
Lawyers 853
138General Comment No. 29, in UN doc. GAOR, A/56/40 (vol. I), p. 203, para. 4.
139Ibid.
140Ibid., p. 203, para. 6.
141Communication No. R.8/34, J. Landinelli Silva and Others (Views adopted on 8 April 1981), in UN doc.
GAOR, A/36/40,
p. 133, para. 8.4.
recommended “that the Government review the necessity for the continued
renewal of
the state of emergency with a view to limiting as far as possible its scope and
territorial
applicability and the associated derogation of rights”. It recalled in particular that
some
articles may never be derogated from and that others may only “be limited to
the extent
strictly required by the exigencies of the situation”.142 Spain and the United
Kingdom
have, among others, been criticized for prolonged and excessive use of
emergency
measures. In the case of Spain, the Committee was concerned, for instance,
about “the
suspension of the rights of terrorist suspects under article 55(2) of the
Constitution and
the fact that circumstances had given rise to what amounted to permanent
emergency
legislation”. In the case of the United Kingdom, the Committee expressed
concern
about “the excessive powers enjoyed by police under anti-terrorism laws” in
Northern
Ireland, “the liberal rules regarding the use of firearms by the police” and “the
many
emergency measures and their prolonged application”.143
These few examples show that the Committee is clearly concerned about the
territorial, temporal and material extent of any emergency measures taken
by State
parties.
4.1.2 Article 27(1) of the American Convention on Human Rights
In its advisory opinion on Habeas Corpus in Emergency Situations, the
Inter-American Court of Human Rights held that:
“Since Article 27(1) [of the Convention] envisages different situations and
since, moreover, the measures that may be taken in any of these
emergencies must be tailored to ‘the exigencies of the situation,’ it is clear
that what might be permissible in one type of emergency would not be
lawful in another. The lawfulness of the measures taken to deal with each
of the special situations referred to in Article 27(1) will depend, moreover,
upon the character, intensity, pervasiveness, and particular context of the
emergency and upon the corresponding proportionality and
reasonableness of the measures.”144
The right to resort to derogatory measures under article 27 is, in other words, a
flexible tool to deal with emergency situations, a tool aimed at bringing back
normalcy
to the community. It follows that derogations from articles that cannot possibly
be
instrumental in restoring peace, order and democracy are not lawful under the
Convention.
In the above-mentioned advisory opinion, the Inter-American Court further
stated that action taken by the public authorities “must be specified with
precision in
the decree promulgating the state of emergency” and that any action that goes
beyond
the limits of that strictly required to deal with the emergency “would also be
unlawful
notwithstanding the existence of the emergency situation”.145 The Court then
pointed
out that, since it is improper to suspend guarantees without complying with the
foregoing conditions,
143UN doc. GAOR, A/46/40, p. 45, para. 183 (Spain), and p. 102, para. 411 (United Kingdom).
144I-A Court HR, Advisory Opinion OC-8/87, January 30, 1987, Habeas Corpus in Emergency Situations (arts.
27(2), 25(1) and 7(6)
American Convention on Human Rights), Series A, No. 8, p. 39, para. 22.
145Ibid., p. 46, para. 38.
“39. … it follows that the specific measures applicable to the rights and
freedoms that have been suspended may also not violate these general
principles. Such violation would occur, for example, if the measures taken
infringed the legal regime of the state of emergency, if they lasted longer
than the time limit specified, if they were manifestly irrational, unnecessary
or disproportionate, or if, in adopting them there was a misuse or abuse of
power.
40. If this is so, it follows that in a system governed by the rule of law it is
entirely in order for an autonomous and independent judicial order to exercise
control over the lawfulness of such measures by verifying, for example,
whether a detention based on the suspension of personal freedom complies
with the legislation authorized by the state of emergency. In this context,
habeas corpus acquires a new dimension of fundamental importance.”146
4.1.3 Article 15(1) of the European Convention on Human Rights
The European Court of Human Rights has examined the consistency of
derogatory measures with the condition that they must be “strictly required by
the
exigencies of the situation” in connection with the use of special powers of arrest
and
detention.147 According to its jurisprudence, however, a “wide margin of
appreciation”
should be left to national authorities, not only in determining whether the State
is faced
with a “public emergency threatening the life of the nation” but also in deciding
on “the
nature and scope of derogations necessary to avert it”.148 However,
“The Contracting Parties do not enjoy an unlimited power of appreciation.
It is for the Court to rule on whether inter alia the States have gone beyond
the ‘extent strictly required by the exigencies’ of the crisis. The domestic
margin of appreciation is thus accompanied by a European supervision…
At the same time, in exercising its supervision the Court must give
appropriate weight to such relevant factors as the nature of the rights
affected by the derogation, the circumstances leading to, and the duration
of, the emergency situation.”149
While paying special attention to arguments adduced by Governments in
favour of derogations, the Court in fact examines in detail, as will be shown
below, the
question of the alleged necessity of the derogatory measures, including the
question of
safeguards against abuse.
Derogations from human rights obligations must not go beyond what is
strictly required by the exigencies of the situation. This
means that the relevant measures must be tailored to the “exigencies of
the situation” in terms of their territorial application, their material
content and their duration.
Lawyers 855
146Ibid., p. 46, paras. 39-40.
79, para. 211.
79, para. 207; Eur. Court HR,
Case of Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A, No. 258-B, p. 49,
para. 43; and Eur. Court HR, Case
of Aksoy v. Turkey, Judgment of 18 December 1996, Reports 1996-VI, p. 2280, para. 68.
149Eur. Court HR, Case of Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series
A, No. 258-B, pp. 49-50,
para. 43; and Eur. Court HR, Case of Aksoy v. Turkey, Judgment of 18 December 1996, Reports 1996-VI, p.
2280, para. 68.
Derogatory measures going beyond the condition of strict necessity are
unlawful and have to be judged in the light of the legal standards
applicable in normal times.
The international monitoring bodies have a right and duty to make their
own independent assessment of the strict necessity of any derogatory
measures taken by States parties.
The Contracting States to the European Convention on Human Rights
have a “wide margin of appreciation” in assessing the strict necessity of
the measures concerned, a margin of appreciation that is, however,
accompanied by a European supervision.
4.2 The right to effective remedies
The Human Rights Committee notes in General Comment No. 29 that article
2(3) of the International Covenant “requires a State party to the Covenant to
provide
remedies for any violation of the provisions of the Covenant”.
“This clause is not mentioned in the list of non-derogable provisions in
article 4, paragraph 2, but it constitutes a treaty obligation inherent in the
Covenant as a whole. Even if a State party, during a state of emergency, and
to the extent that such measures are strictly required by the exigencies of
the situation, may introduce adjustments to the practical functioning of
their procedures governing judicial or other remedies, the State party must
comply with the fundamental obligation, under article 2, paragraph 3, of
the Covenant, to provide a remedy that is effective.”150
In other words, even in situations in which a State party concludes that a
threat to the life of the nation requires it to derogate from its obligations under
the
Covenant, it remains legally bound to provide effective remedies to victims of
human
rights violations, including those who are victims of an excessive or wrongful
application of emergency measures.
The Committee thus expressed concern “about the lack of safeguards and
effective remedies available to individuals during a state of emergency” in
Gabon and
recommended that the State party “should establish effective remedies in
legislation
that are applicable during a state of emergency”.151 The Committee also
emphasized
that Colombia’s constitutional and legal provisions “should ensure that
compliance
with article 4 of the Covenant can be monitored by the courts”.152
*****
151Ibid., p. 43, para. 10.
In its advisory opinion on Judicial Guarantees in States of Emergency, the
Inter-American Court stated with regard to derogatory measures that from article
27(1)
comes the general requirement “that in any state of emergency there be
appropriate
means to control the measures taken, so that they are proportionate to the
needs and do
not exceed the strict limits imposed by the Convention or derived from it”.153
With regard to rights that have not been suspended or derogated from, the
Court has unequivocally ruled that “the declaration of a state of emergency –
whatever
its breadth or denomination in internal law – cannot entail the suppression or
ineffectiveness of the judicial guarantees that the Convention requires the States
Parties
to establish for the protection of [such] rights.” In other words, “the judicial
guarantees
essential for the effectiveness of rights and freedoms that are not subjected to
derogation must be preserved”.154
*****
The question of safeguards against the excessive or abusive use of emergency
measures at the European level will be considered in section 4.3 below, since it
is
intimately linked to the condition of strict necessity of the use of special powers
of
arrest and detention.
The legal duty of States to provide effective domestic remedies for
violations of human rights remains in full force in public emergencies in
respect of rights that have not been derogated from, including
non-derogable rights that must be fully guaranteed at all times.
To the extent that States resort to derogations from their obligations
under human rights treaties, they have to provide effective remedies for
the
purpose of assessing the strict necessity of the emergency measures and
preventing abuses both in general and in any given case.
4.3. The right to liberty and special powers of
arrest and detention
The use of special powers of arrest and detention is one of the most common
means of addressing crisis situations. Such measures can sometimes be far-
reaching,
involving the elimination of judicial review of the lawfulness of the action taken,
as well
as long-term detention or internment, as a result of which persons deprived of
their
liberty may be denied the possibility of having any charges against them
examined in a
trial before an independent and impartial court of law applying due process
guarantees.
From a legal point of view, the situation at the international level is not
homogeneous,
with the European Court seemingly willing to go further than either the Human
Rights
Lawyers 857
153I-A Court HR, Advisory Opinion OC-9/87 of October 6, 1987, Judicial Guarantees in States of Emergency
(arts. 27(2), 25 and 8 of the
American Convention Human Rights), Series A, No. 9, p. 31, para. 21.
154Ibid., p. 34, para. 25, and p. 39, para. 39, and I-A Court HR, Castillo Petruzzi et al. Case, judgment of May
30, 1999, Series C, No. 52,
pp. 215-216, para. 186.
Committee or the Inter-American Commission and Court of Human Rights in
excluding judicial review in times of crisis. However, legal developments in this
regard
may be evolving towards a more uniform approach.
*****
The Human Rights Committee has stated unequivocally that States parties
may “in no circumstances invoke article 4 of the Covenant as justification for
acting in
violation of humanitarian law or peremptory norms of international law, for
instance
… through arbitrary deprivations of liberty.”155 As noted in the preceding
subsection,
the Committee has stated in equally firm terms that the right to an effective
remedy
must be preserved during a state of emergency. It follows that persons deprived
of their
liberty in “a public emergency which threatens the life of the nation” have a right
to an
effective remedy to challenge the lawfulness of the arrest and detention. In other
words,
judicial remedies, such as the writ of habeas corpus, must be effectively
available at all
times. On this important issue the Committee was more forthcoming in its reply
to the
United Nations Sub-Commission on Prevention of Discrimination and Protection
of
Minorities (as it was then called) concerning the suggestion to draft a third
optional
protocol to the Covenant:
“The Committee is satisfied that States parties generally understand that
the right to habeas corpus and amparo should not be limited in situations of
emergency. Furthermore, the Committee is of the view that the remedies
provided in article 9, paragraphs 3 and 4, read in conjunction with article 2
are inherent to the Covenant as a whole. Having this in mind, the
Committee believes that there is a considerable risk that the proposed draft
third optional protocol might implicitly invite State parties to feel free to
derogate from the provisions of article 9 of the Covenant during states of
emergency if they do not ratify the proposed optional protocol. Thus, the
protocol might have the undesirable effect of diminishing the protection
of detained persons during states of emergency.”156
From the various statements of the Human Rights Committee it seems clear
that the guarantees contained in article 9 (3) and (4) must be effectively
enforced at all
times, even in public emergencies threatening the life of the nation. These
guarantees
comprise, in particular, the right of anyone “arrested or detained on a criminal
charge
[to] be brought promptly before a judge or other officer authorized by law to
exercise
judicial power” (art. 9(3)) and the right of anyone “who is deprived of his liberty
by
arrest or detention…to take proceedings before a court, in order that that court
may
decide without delay on the lawfulness of his detention and order his release if
the
detention is not lawful” (art. 9(4)). For the interpretation of these provisions, see
Chapter 5 on “Human Rights and Arrest, Pre-trial and Administrative Detention”.
*****
156See UN doc. GAOR, A/49/40 (vol. I), annex XI, p. 120. The first part of this statement was also included in
General
Comment No. 29), but only in a footnote; see GAOR, A/56/40 (vol. I), pp. 208-209, footnote i.
With regard to protection of the right to liberty and security under the
American Convention on Human Rights, the legal situation is clear inasmuch as,
where
special powers of arrest and detention are used “in time of war, public danger, or
other
emergency that threatens the independence or security of a State Party”, every
person
subject thereto has an unconditional right to an effective remedy in the form of
habeas
corpus and amparo, as guaranteed by articles 7(6) and 25(1) of the Convention,
for the
protection of rights that cannot be derogated from in accordance with article
27(2) of
the Convention. To the extent that special powers of arrest and detention may,
per se,
be authorized under article 27(1) of the Convention, there must likewise be
effective
remedies available to persons deprived of their liberty enabling them to
challenge the
compatibility of the measures concerned with the condition of strict necessity.
*****
At the European level, the European Court of Human Rights has accepted
far-reaching extraordinary powers of arrest and detention, including internment,
in
connection with the situation in Northern Ireland, without the possibility of
judicial
review. These cases, such as the Ireland v. the United Kingdom case, are
complex and only a
relatively brief summary of the legal issues to which they gave rise will be
considered in
this chapter.
In the Lawless case, the Court concluded that the special powers of detention
conferred upon the Ministers of State under the Offences against the State
(Amendment) Act of 1940 were contrary to article 5(1)(c) and (3) of the
European
Convention on the grounds that the five-month-long detention of Mr. Lawless
“was
not ‘effected for the purpose of bringing him before the competent legal
authority’ and
that during his detention he was not in fact brought before a judge for trial
‘within a
reasonable time’” as prescribed by those provisions.157 According to the Court,
the
“plain and natural meaning” of the wording of article 5(1)(c) and (3) “plainly
entails the
obligation to bring everyone arrested or detained in any of the circumstances
contemplated by the provisions of paragraph 1 (c) before a judge for the purpose
of
examining the question of deprivation of liberty or for the purpose of deciding on
the
merits”.158 As Mr. Lawless was never brought before a judge for either of these
purposes, his detention violated article 5 of the Convention and the Court had
therefore to examine whether this violation could be justified under article 15(1)
of the
Convention as being “strictly required by the exigencies of the situation”
obtaining in
Ireland in 1957.
After an examination of the facts and the arguments of the parties to the case,
the Court concluded that there were no other means available to the Contracting
State
that would have made it possible to deal with the situation. As a result, “the
administrative detention…of individuals suspected of intending to take part in
terrorist activities appeared, despite its gravity, to be a measure required by
the
circumstances.”159 The means that the Court had excluded as being capable of
dealing
with the emergency were:
Lawyers 859
158Ibid., p. 52, para. 14.
_ “the application of the ordinary law had proved unable to check the growing
danger
which threatened the Republic of Ireland”;
_ “the ordinary criminal courts, or even the special criminal courts or military
courts”;
_ “the amassing of the necessary evidence to convict persons involved in
activities of
the IRA and its splinter groups”, a process that met with great difficulties
“caused by
the military, secret and terrorist character of those groups and the fear they
created
among the population”;
_ “the fact that these groups operated mainly in Northern Ireland, their activities
in
the Republic of Ireland being virtually limited to the preparation of armed raids
across the border was an additional impediment to the gathering of sufficient
evidence”; and
_ the fact that “the sealing of the border would have had extremely serious
repercussions on the population as a whole, beyond the extent required by the
exigencies of the situation”.160
The Court then noted that “the Offences against the State (Amendment) Act
of 1940, was subject to a number of safeguards designed to prevent abuses in
the
operation of the system of administrative detention”. These safeguards were: (1)
the
constant supervision thereof by the Parliament and the establishment of a
Detention
Commission consisting of one member of the Defence Forces and two judges; (2)
a
person detained under the 1940 Act “could refer his case to that Commission
whose
opinion, if favourable to the release of the person concerned, was binding upon
the
Government”; (3) the ordinary courts could “compel the Detention Commission
to
carry out its functions”.161 Lastly, the Government had publicly announced that it
would release any person detained under the Act “who gave an undertaking to
respect
the Constitution and the Law and not to engage in any illegal activity”.162
The Court concluded that, subject to these safeguards, “the detention without
trial provided for by the 1940 Act. appears to be a measure strictly required by
the
exigencies of the situation” within the meaning of article 15 of the Convention.
The
Court further took the view that, as applied to Mr. Lawless in person, the
measure
concerned did not go beyond the principle of strict necessity.163
Similar questions arose years later in the Ireland v. the United Kingdom case
concerning various complex powers of extrajudicial deprivation of liberty used by
the
United Kingdom in Northern Ireland which had their legal basis in Regulations 10
(arrest), 11(1) (arrest), 11(2) (detention) and 12 (internment), and in the
Terrorists
Order (interim custody and detention) and the Emergency Provisions Act (arrest,
interim custody and detention). Without considering these powers in detail, it
should be
mentioned that Regulation 10 allowed persons to be arrested in the absence of
“suspicion” of an offence merely “for the preservation of the peace and
maintenance of
160Ibid., loc. cit.
161Ibid., p. 58, para. 37.
162Ibid., loc. cit.
163Ibid., pp. 58-59, paras. 37-38; emphasis added. Although the Chamber of the Court was unanimous, the
result was split in the
European Commission of Human Rights, which had earlier dealt with the case. In the Commission a majority
of 8 to 6 considered
that the administrative detention was strictly required by the exigencies of the situation. The minority
opinions provide useful
arguments for a fuller understanding of the complexities of the Lawless case. For the Opinion of the
Commission, see Eur. Court HR,
Lawless Case, Series B, 1960-1961, pp. 113-156.
order” and was “sometimes also used to interrogate the person concerned about
the
activities of others”. The other Regulations required suspicion of an “offence”
and/or
“activity ‘prejudicial to the preservation of the peace or maintenance of
order’”.164 The
Terrorists Order and the Emergency Provisions Act “were applicable only to
individuals suspected of having been concerned in the commission or attempted
commission of any act of terrorism, that is the use of violence for political ends,
or in
the organisation of persons for the purpose of terrorism”.165
In general terms the Court concluded that the impugned measures violated
the provisions of article 5(1)(c), 5(2), 5(3) and 5(4) respectively, since (1) the
detentions
were not effected for the purpose of bringing the detainee before the competent
legal
authority; (2) “the persons concerned were not normally informed why they
were being
arrested [but] in general they were simply told…that the arrest was made
pursuant to
the emergency legislation” without being given any further details; (3) “the
impugned
measures were not effected for the purpose of bringing the persons concerned
‘promptly’ before ‘the competent legal authority’”; (4) the persons arrested or
detained
were “even less entitled to ‘trial within a reasonable time’ or to ‘release pending
trial’”;
(5) “there was no entitlement to ‘take proceedings by which the lawfulness of
[the]
detention [would] be decided speedily by a court’ and ‘release ordered if the
detention’
proved to be ‘not lawful.’”166
In examining whether these violations of article 5 could be justified under
article 15(1) of the European Convention, the Court considered first whether the
deprivation of liberty contrary to article 5(1) was necessary, and second the
failure of
guarantees to attain the level fixed by paragraphs 2 to 4 of article 5.167
With regard to article 5(1), the Court concluded that “the limits of the margin
of appreciation left to the Contracting States by Article 15 § 1 were not
overstepped by
the United Kingdom when it formed the opinion that extrajudicial deprivation of
liberty was necessary from August 1971 to March 1975.”168 “Unquestionably, the
exercise of the special powers was mainly, and before 5 February 1973 even
exclusively,
directed against the IRA as an underground military force … which was creating,
in
August 1971 and thereafter, a particularly far-reaching and acute danger for the
territorial integrity of the United Kingdom, the institutions of the six counties and
the
lives of the province’s inhabitants… Being confronted with a massive wave of
violence
and intimidation, the Northern Ireland Government and then, after the
introduction of
direct rule, the British Government were reasonably entitled to consider that
normal
legislation offered insufficient resources for the campaign against terrorism and
that
recourse to measures outside the scope of the ordinary law, in the shape of
extrajudicial
deprivation of liberty, was called for.”169
However, the Court had some problems with Regulation 10 which permitted
the arrest of a person “for the sole purpose of obtaining from him information
about
Lawyers 861
164Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, Vol. 25, pp.
74-75, para. 196.
165Ibid., p. 75, para. 196.
166Ibid., pp. 74-77, paras. 194-201.
167Ibid., p. 80, para. 211.
168Ibid., p. 82, para. 214.
169Ibid., pp. 80-81, para. 212.
others”. In the Court’s view, “this sort of arrest can be justifiable only in a very
exceptional situation, but the circumstances prevailing in Northern Ireland did
fall into
such a category.” Moreover, the period of authorized deprivation of liberty was
limited
to a maximum of 48 hours.170
The Irish Government contended that the extraordinary measures had
proved “ineffectual” in that they had “not only failed to put a break on terrorism
but
also had the result of increasing it”, facts which in its view confirmed “that
extrajudicial
deprivation of liberty was not an absolute necessity”. This argument was not
accepted
by the Court which considered that it “must arrive at its decision in the light, not
of a
purely retrospective examination of the efficacy of those measures, but of the
conditions and circumstances when they were originally taken and subsequently
applied”.171
With regard to the lack of the guarantees prescribed in article 5(2)-(4) of the
European Convention, the Court concluded that “an overall examination of the
legislation and practice at issue reveals that they evolved in the direction of
increasing
respect for individual liberty. The incorporation right from the start of more
satisfactory judicial, or at least administrative, guarantees would certainly have
been
desirable…but it would be unrealistic to isolate the first from the later phases.
When a
State is struggling against a public emergency threatening the life of the nation,
it would
be rendered defenceless if it were required to accomplish everything at once, to
furnish
from the outset each of its chosen means of action with each of the safeguards
reconcilable with the priority requirements for the proper functioning of the
authorities
and for restoring peace within the community. The interpretation of Article 15
must
leave a place for progressive adaptations.”172
It should be noted that the right to a judicial or administrative remedy was not
only absent in the case of deprivation of liberty lasting for 48 or 72 hours but
also in
cases in which individuals were interned or deprived of their liberty for years
under, for
example, Regulation 12(1), article 5 of the Terrorists Order and paragraph 24 of
Schedule I of the Emergency Provisions Act. Nevertheless, in the words of the
Court,
“the advisory committee set up by Regulation 12(1) afforded, notwithstanding its
non-judicial character, a certain measure of protection that cannot be
discounted. By
establishing commissioners and an appeal tribunal, the Terrorists Order brought
further safeguards which were somewhat strengthened by the Emergency
Provisions
Act. There was in addition the valuable, if limited, review effected by the courts,
when
the opportunity arose, by virtue of the common law.”173
In the Brannigan and McBride case, which also concerned anti-terrorist
legislation in the United Kingdom, the Court had to consider the lack of judicial
intervention
in the exercise of the power to detain suspected terrorists for up to seven days.
The case
arose out of the derogation made by the United Kingdom Government after the
Court
found a violation of article 5(3) in the Brogan and Others case, in which it
concluded that
the applicants had not been brought “promptly” before a court. In that case the
Court
170Ibid.,p. 81, para. 212.
171Ibid.,pp. 81-82, para. 214.
172Ibid.,p. 83, para. 220.
173Ibid.,p. 83, paras. 218-219. It is noteworthy that the Court had earlier held that the judicial review
provided by these habeas
corpus proceedings was “not sufficiently wide in scope” for the purposes of article 5(4) of the Convention, p.
77, para. 200.
recalled that “judicial control of interferences by the executive with the
individual’s
right to liberty is an essential feature of the guarantee embodied in Article 5 § 3
[and] is
implied by the rule of law, ‘one of the fundamental principles of a democratic
society
which is expressly referred to in the Preamble to the Convention’.”174
After rejecting the applicants’ argument in the Brannigan and McBride case that
the derogation was not a genuine response to an emergency and that it was
premature,175 the Court concluded that, having regard to: (1) “the nature of the
terrorist
threat in Northern Ireland”, (2) “the limited scope of the derogation and the
reasons
advanced in support of it” and (3) “the existence of basic safeguards against
abuse”, the
United Kingdom Government had “not exceeded their margin of appreciation in
considering that the derogation was strictly required by the exigencies of the
situation”.176 In its reasoning the Court noted:
_ “the opinions expressed in various reports reviewing the operation of the
Prevention of Terrorism legislation that the difficulties of investigating and
prosecuting terrorist crime give rise to the need for an extended period of
detention
which would not be subject to judicial control”, difficulties that had been
recognized in the Brogan and Others judgment;
_ that “it remains the view of the respondent Government that it is essential to
prevent the disclosure to the detainee and his legal adviser of information on the
basis of which decisions on the extension of detention are made and that, in the
adversarial system of the common law, the independence of the judiciary would
be
compromised if judges or other judicial officers were to be involved in the
granting
or the approval of extensions”;
_ that “the introduction of a ‘judge or other officer authorised by law to exercise
judicial
power’ into the process of extension of periods of detention would not of itself
necessarily bring about a situation of compliance with Article 5 § 3. That
provision –
like Article 5 § 4 – must be understood to require the necessity of following a
procedure that has a judicial character although that procedure need not
necessarily be
identical in each of the cases where the intervention of a judge is required.”177
The Court pointed out that it was not its role “to substitute its view as to what
measures were most appropriate or expedient at the relevant time in dealing
with an
emergency situation for that of the Government which have direct responsibility
for
establishing the balance between the taking of effective measures to combat
terrorism
on the one hand, and respecting individual rights on the other… In the context of
Northern Ireland, where the judiciary is small and vulnerable to terrorist attacks,
public
confidence in the independence of the judiciary is understandably a matter to
which the
Government attach great importance.”178 It followed that the Government had
not
“exceeded their margin of appreciation in deciding, in the prevailing
circumstances,
against judicial control”.179
Lawyers 863
Series A, No. 145-B, p. 32, para. 58.
A, No. 258-B, pp. 51-52,
paras. 49-54.
176Ibid., p. 56, para. 66.
177Ibid., p. 54, para. 58.
178Ibid., p. 54, para. 59.
179Ibid., p. 54, para. 60.
Lastly, the Court was satisfied that safeguards against abuse did in fact exist
and provided “an important measure of protection against arbitrary behaviour
and
incommunicado detention”. The safeguards were:
_ “the remedy of habeas corpus … to test the lawfulness of the original arrest
and
detention”;
_ the fact that “detainees have an absolute and legally enforceable right to
consult a
solicitor after forty-eight hours from the time of arrest. Both of the applicants
were,
in fact, free to consult a solicitor after this period”;
_ the fact that “within this period the exercise of this right can only be delayed
where
there exists reasonable grounds for doing so. It is clear … that … the decision to
delay access to a solicitor is susceptible to judicial review and that in such
proceedings the burden of establishing reasonable grounds for doing so rests on
the
authorities. In these cases judicial review has been shown to be a speedy and
effective manner of ensuring that access to a solicitor is not arbitrarily withheld”;
and
_ the fact that “detainees are entitled to inform a relative or friend about their
detention and to have access to a doctor”.180
Lastly, it is important to point out that, in rejecting the applicants’ allegations
that the United Kingdom derogation had been premature, the Court held that:
“The validity of the derogation cannot be called into question for the sole
reason that the Government had decided to examine whether in the future
a way could be found of ensuring greater conformity with Convention
obligations. Indeed, such a process of continued reflection is not only in
keeping with Article 15 § 3 which requires permanent review of the need
for emergency measures but is also implicit in the very notion of
proportionality.”181
In other words, the condition that a derogating State may take only such
measures as are “strictly required by the exigencies of the situation” means that
not only
must such measures be strictly proportionate to the threat to the nation when
they are
introduced but the derogating State must continuously ensure that they remain
proportionate thereto, failing which they will be in breach of the requirements of
article
15(1) of the Convention.
This conclusion was confirmed in the case of Marshall v. the United Kingdom,
which was declared inadmissible by the Court and was therefore not
considered on
the merits. The applicant complained that he had been detained for a period of
seven
days under section 14 of the Prevention of Terrorism (Temporary Provisions) Act
1989 without being brought before a judge. In his view, the delay constituted a
violation
of the requirement of promptness in article 5(3) of the Convention that could not
be
justified under article 15(1) as being “strictly required by the exigencies of the
situation”
because statistics showed that “at the material time most individuals detained
under
180Ibid., pp. 55-56, paras. 62-64. However, four members of the Court disagreed with the conclusions
arrived at in this case;
see pp. 61-69, 71 and 74-75.
181Ibid., p. 52, para. 54.
section 14 of the 1989 Act were released without charge”, which meant that the
police
were “using the power to gather information, or to arrest individuals against
whom
there [was] very little or no evidence”. The applicant further challenged the
adequacy of
available safeguards.182
As noted by the Court, the Government itself relied on the same justifications
for the measure of extended detention without judicial intervention as in the
Brannigan
and McBride case, justifications that the Court had accepted in that case. In the
Marshall
case the Court ruled that:
“at the time of the applicant’s arrest the continued reliance on the system
of administrative detention of suspected terrorists for periods of up to
seven days did not result in the overstepping of the margin of appreciation
which is accorded to the authorities in determining their response to the
threat to the community. The reasons which the Government gave in the
Brannigan and McBride case against judicial control continue to be
relevant and sufficient. It notes in this respect that the threat of terrorist
outrage was still real and that the paramilitary groups in Northern Ireland
retained the organisational capacity to kill and maim on a wide scale. The
applicant contends that it would have been open to the authorities to
contain the level of violence prevailing at the relevant time by means of the
ordinary criminal law. He observes in this connection that violence on a
similar scale in other parts of the United Kingdom have been addressed
without recourse to the displacement of due process guarantees. The
Court has examined this argument. However, it considers that the
applicant’s reasoning does not take sufficient account of the specific nature
of the violence which has beset Northern Ireland, less so the political and
historical considerations which form the backdrop to the emergency
situation, considerations which the Court described at length in its Ireland
v. the United Kingdom judgment.”183
Moreover, eight years after the adoption of the judgment in the Brannigan and
McBride case, the Court remained “satisfied” that the safeguards against abuse
continued “to provide an important measure of protection against arbitrary
behaviour
and incommunicado detention”.184
Lastly, the Court was unable to accept the applicant’s submission that the
Government had not conducted “a meaningful review of the continuing necessity
for
the derogation to Article 5 § 3”. Indeed, it was “satisfied on the basis of the
material
before it” that the authorities had “addressed themselves to this issue with
sufficient
frequency”, for example through annual reviews and parliamentary debates on
any
proposal to renew the legislation. The Court noted that the Government had
finally
withdrawn the derogation in February 2001.185
Lawyers 865
182Eur. Court HR, Case of Marshall v. the United Kingdom, decision of 10 July 2001, pp. 7-8 of the text of the
decision as published on
the Court’s web site http://echr.coe.int
183Ibid., p. 10.
184Ibid., loc. cit.
185Ibid., pp. 10-11.
In the Aksoy case, the applicant had been held in custody in Turkey for at least
fourteen days, in particular on suspicion of aiding and abetting PKK terrorists,
without being brought before a judge or other officer.186 The Court again stressed
the
importance of article 5 in the Convention system:
“it enshrines a fundamental right, namely the protection of the individual
against arbitrary interference by the State with his or her right to liberty.
Judicial control of interferences by the executive with the individual’s right
to liberty is an essential feature of the guarantee embodied in Article 5 § 3,
which is intended to minimise the risk of arbitrariness and to ensure the
rule of law… Furthermore, prompt judicial intervention may lead to the
detection and prevention of serious ill-treatment, which…is prohibited by
the Convention in absolute and non-derogable terms.”187
The Turkish Government sought in this case to justify the long detention
without judicial review “by reference to the particular demands of police
investigations in
a geographically vast area faced with a terrorist organisation receiving outside
support”.188
Although the Court reiterated its view “that the investigation of terrorist offences
undoubtedly presents the authorities with special problems”, it could not accept
“that it is necessary to hold a suspect for fourteen days without judicial
intervention. This period is exceptionally long, and left the applicant
vulnerable not only to arbitrary interference with his right to liberty but
also to torture… Moreover, the Government have not adduced any
detailed reasons before the Court as to why the fight against terrorism in
South-East Turkey rendered judicial intervention impracticable.”189
With regard to the question of safeguards, the Court considered that, in
contrast to the Brannigan and McBride case, “insufficient safeguards were
available to the
applicant, who was detained over a long period of time”.
“In particular, the denial of access to a lawyer, doctor, relative or friend and
the absence of any realistic possibility of being brought before a court to
test the legality of the detention meant that he was left completely at the
mercy of those holding him.”190
The Court had taken account “of the unquestionably serious problem of
terrorism in South-East Turkey and the difficulties faced by the State in taking
effective
measures against it. However, it [was] not persuaded that the exigencies of the
situation
necessitated the holding of the applicant on suspicion of involvement in terrorist
offences for fourteen days or more in incommunicado detention without access
to a
judge or other judicial officer.”191 Turkey had therefore violated article 5(3) of the
Convention, a violation that could not be justified under article 15(1).
186Eur. Court HR, Aksoy v. Turkey, judgment of 18 December 1996, Reports 1996-VI, p. 2281, para. 71, and
p. 2282, para. 77.
187Ibid., p. 2282, para. 76. It is noteworthy that the Court concluded in this case that the applicant had
been subjected to
treatment while detained that “was of such a serious and cruel nature that it can only be described as
torture”, p. 2279, para. 64.
188bid., p. 2282, para. 77.
189Ibid., p. 2282, para. 78.
190Ibid., p. 2283, para. 83.
191Ibid., p. 2284, para. 84.
The right to effective protection against arbitrary State interference with a
person’s right to liberty is fundamental. The right to swift judicial control
of deprivations of liberty plays an essential role in protecting the
individual against arbitrary arrest and detention.
Special powers of arrest and detention may, however, be resorted to in
public emergencies threatening the life of the nation (universal and
European levels) or the independence or security of the relevant State
party (the Americas), but only to the extent that, and for as long as, such
special powers are strictly required by the exigencies of the situation.
This means that special powers of arrest and detention are lawful only to
the extent that they are strictly proportionate to the threat actually posed
by the emergency.
It is for the derogating State to prove that the measures are strictly
required by the exigencies of the situation. This legal duty implies that the
derogating State must keep the necessity of the measures under constant
review.
Special powers of arrest and detention may at no time lead to arbitrary
arrest or detention or to abuses of any kind. To prevent arbitrariness and
abuses in the exercise of such powers, effective remedies and adequate
safeguards must be preserved during emergency situations and be
available to every person deprived of his or her liberty through arrest or
detention:
_ Under the International Covenant on Civil and Political Rights and
the American Convention on Human Rights, the right to a judicial
remedy such as habeas corpus must be available at all times to
assess the lawfulness of the deprivation of liberty;
_ Jurisprudence under the European Convention on Human Rights
varies according to the severity of the emergency faced by the derogating
State and the safeguards available. While the European Court has in
its most recent case law accepted seven days of detention without
legal intervention provided that adequate safeguards against abuse,
including habeas corpus, exist to test the lawfulness of the initial
arrest and detention (United Kingdom), it has not accepted as strictly
required by the exigencies of the situation the holding of a detainee for
fourteen days without judicial intervention and without adequate
safeguards (Turkey);
_ Safeguards that are considered adequate at the European level
include, in addition to judicial review in the form of habeas corpus,
effective access to a lawyer, the right to have access to a medical doctor
and the right to inform a family or friend of arrest and detention. The
European Court usually examines the adequacy of these safeguards
in the aggregate;
Lawyers 867
_ Although the European Court of Human Rights has stressed the
desirability of having adequate judicial or at least administrative
remedies available as soon as special powers of arrest and detention
are introduced, it has accepted as being strictly required by the
exigencies of the situation cases of long-term detention or internment
without such remedies but with alternatively designed safeguards.
However, the trend in Europe also appears to be towards a
strengthening of the rights of persons deprived of their liberty by virtue
of emergency powers;
_ The international monitoring bodies have emphasized the importance
of judicial review of the lawfulness of deprivation of liberty for the
purpose of protecting detainees against torture and other forms of
ill-treatment.
4.4 The right to a fair trial and special tribunals
As the right to a fair trial by a competent, independent and impartial tribunal is
not made non-derogable expressis verbis either by the International Covenant or
by the
American and European Conventions, questions arise as to what elements of this
fundamental right may be derogated from in states of emergency.
For a general analysis of the right to a fair trial, see Chapters 6 and 7 of this
Manual, which describe in some detail the rights contained in article 14 of the
International Covenant, article 7 of the African Charter on Human and Peoples’
Rights,
article 8 of the American Convention on Human Rights and article 6 of the
European
Convention on Human Rights. None of these provisions refers, for instance, to
military
or other special courts per se. They simply set out some basic principles that
must be
applied by all courts called upon to determine a criminal charge or a (civil or
other) right
or obligation. The question of “Military and other special courts or tribunals” was
considered in Chapter 4, subsection 4.7, of this Manual, and Chapter 7, section
7,
concerned “The Right to a Fair Trial and Special Tribunals”.
It is important to recall at the outset that Principle 5 of the United Nations
Basic Principles on the Independence of the Judiciary states that:
“Everyone shall have the right to be tried by ordinary courts or tribunals
using established legal procedures. Tribunals that do not use the duly
established procedures of the legal process shall not be created to displace
the jurisdiction belonging to the ordinary courts or judicial tribunals.”
It is further recalled that the Human Rights Committee, in General Comment
No. 13, states that “the provisions of article 14 apply to all courts and tribunals
…
whether ordinary or specialized”. Moreover, while the Covenant does not prohibit
military or special courts,
“nevertheless the conditions which it lays down clearly indicate that the
trying of civilians by such courts should be very exceptional and take place
under conditions which genuinely afford the full guarantees stipulated in
article 14… If States parties decide in circumstances of a public emergency
as contemplated by article 4 to derogate from normal procedures required
under article 14, they should ensure that such derogations do not exceed
those strictly required by the exigencies of the actual situation, and respect
the other conditions in paragraph 1 of Article 14.”192
In General Comment No. 29, the Human Rights Committee states that: “As
certain elements of the right to a fair trial are explicitly guaranteed under
international
humanitarian law during armed conflict, the Committee finds no justification for
derogation from these guarantees during other emergency situations.” The
Committee
is of the opinion that the principles of legality and the rule of law require:
_ that “fundamental requirements of fair trial must be respected during a state of
emergency”;
_ that “only a court of law may try and convict a person for a criminal offence”;
and
_ that “the presumption of innocence must be respected”.193
In the case of M. González del Río v. Peru, the Committee held, furthermore,
that “the right to be tried by an independent and impartial tribunal is
an
absolute right that may suffer no exception”.194 Yet the Committee has
also
admitted that “it would simply not be feasible to expect that all provisions of
article 14
can remain fully in force in any kind of emergency”.195
It seems clear from the various comments and views of the Human Rights
Committee that, whether tried by an ordinary or special court, an accused
person must
in all circumstances, including in public emergencies, be given a fair trial by an
independent and impartial court of law and that he or she must be presumed
innocent
until proved guilty. The Committee still has to define how, and to what extent,
the other
guarantees contained in article 14 may be limited in public emergencies.
However, as
expressly stated in article 14(3) of the Covenant, the guarantees contained
therein are
“minimum guarantees” to which “everyone shall be entitled … in full equality”.
The
question therefore arises whether there is any scope at all for limiting these
guarantees
further in public emergencies. Similar “minimum” guarantees or rights are
contained in
article 8(2) of the American Convention on Human Rights and article 6(3) of the
European Convention on Human Rights. Moreover, the provisions of article 7 of
the
African Charter on Human and Peoples’ Rights cannot be derogated from and
must
therefore be applied with full force in public emergencies.
*****
Lawyers 869
194Communication No. 263/1987, M. González del Río v. Peru (Views adopted on 28 October 1992), GAOR,
A/48/40 (vol. II),
195See the Committee’ reply to the Sub-Commission on the question of a draft third optional protocol to the
Covenant, in UN
doc. GAOR, A/49/40 (vol. I), annex XI.
With regard to international humanitarian law, the four Geneva Conventions
of 1949 and the two Additional Protocols of 1977 provide a number of
fundamental
fair trial guarantees. Although the guarantees vary from treaty to treaty, they
include
such aspects of a fair trial as:
_ the right to be tried by a court offering the essential guarantees of
independence and
impartiality;
_ the right to have access to a lawyer;
_ the right to an interpreter;
_ the right of the accused to be informed without delay of the particulars of the
offence alleged against him and the right before as well as during the trial to all
necessary rights and means of defence;
_ the right not to be convicted of an offence except on the basis of individual
penal
responsibility;
_ the right to be tried in one’s presence;
_ the right not to be compelled to testify against oneself;
_ the right to examine, or to have examined, the witnesses against him and to
obtain
the attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
_ the right to have the judgment pronounced publicly;
_ the right to an appeal.196
As these guarantees prescribed by humanitarian law are applicable to armed
conflicts, they must, a fortiori, belong among the guarantees that States must
ensure in
emergency situations of a less severe nature. This is also the Human Rights
Committee’s understanding in General Comment No. 29 (see above).
*****
A special tribunal set up to try certain categories of offences may involve
discrimination contrary to article 26 of the Covenant without necessarily violating
article 14. The case of Kavanagh v. Ireland concerned the Special Criminal Court
created
in Ireland following a Government proclamation of 26 May 1972 pursuant to
Section
35(2) of the Offences against the State Act 1939. The author complained that he
had
been the victim of a violation of article 14(1) of the Covenant by being subjected
to the
Special Court “which did not afford him a jury trial and the right to examine
witnesses
at a preliminary stage”. He had therefore not been afforded a fair trial.197 The
author
accepted that “neither jury trial nor preliminary examination is in itself required
by the
Covenant, and that the absence of either or both of these elements does not
necessarily
196See article 49 of the Geneva Convention for the Amelioration of the Condition of the Wounded and Sick
in Armed Forces in
the Field, 1949; article 50 of the Geneva Convention for the Amelioration of the Condition of Wounded, Sick
and Shipwrecked
Members of Armed Forces at Sea, 1949; articles 105-108 of the Geneva Convention Relative to the
Treatment of Prisoners of War;
articles 71-73 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 1949;
common article 3 of the
four Geneva Conventions; article 75(4) of Protocol I to the Geneva Conventions of 12 August 1949, and
Relating to the Protection
of Victims of International Armed Conflicts; and article 6 of Protocol II to the Geneva Conventions of 12
August 1949, and Relating
to the Protection of Victims of Non-International Armed Conflicts (Protocol II).
197Communication No. 819/1998, Kavanagh v. Ireland (Views adopted on 4 April 2001), in UN doc. GAOR,
A/56/40 (vol. II),
p. 133, para. 10.1.
render a trial unfair”. Yet he considered that “all of the circumstances of his trial
before
a Special Criminal Court rendered his trial unfair”.198
The Human Rights Committee confirmed that “trial before courts other than
the ordinary courts is not necessarily, per se, a violation of the entitlement to a
fair
hearing” and added that the facts in the Kavanagh case did not show that there
had been
such a violation.199 On the other hand, the decision of the Director of Public
Prosecutions (DPP) to charge the author before an extraordinarily constituted
court
deprived him “of certain procedures under domestic law, distinguishing the
author
from others charged with similar offences in the ordinary courts”. As trial by jury
was
considered to be “an important protection” in the State party, the latter was
required to
demonstrate that the decision to try the author by a different procedure “was
based
upon reasonable and objective grounds”.200 The Committee then noted that the
Offences against the State Act set out a number of specific offences that can be
tried
before a Special Criminal Court “if the DPP is of the view that the ordinary courts
are
‘inadequate to secure the effective administration of justice’”. However, the
Committee
considered it problematic that:
“even assuming that a truncated criminal system for certain offences is
acceptable so long as it is fair, Parliament through legislation set out
specific serious offences that were to come within the Special Criminal
Court’s jurisdiction in the DPP’s unfettered discretion (‘thinks proper’),
and goes on to allow, as in the author’s case, any other offences also to be
so tried if the DPP considered the ordinary courts inadequate. No reasons
are required to be given for the decisions that the Special Criminal Court
would be ‘proper’, or that the ordinary courts are ‘inadequate’, and no
reasons for the decision in the particular case have been provided to the
Committee. Moreover, judicial review of the DPP’s decisions is effectively
restricted to the most exceptional and virtually undemonstrable
circumstances.”201
The Committee therefore concluded that Ireland had “failed to demonstrate
that the decision to try the author before the Special Criminal Court was based
upon
reasonable and objective grounds”. It followed that his rights under article 26
had been
violated. Given this finding, the Committee believed that it was “unnecessary” to
examine the question of equality before courts and tribunals contained in article
14(1),202 although the latter provision must be considered to be lex specialis
compared
with article 26 of the Covenant.
While the Committee may not necessarily consider a trial before a special
court to be contrary to article 14 of the Covenant, it has, as shown in Chapter 4,
been
particularly severe in its comments whenever military tribunals have been given
competence to try civilians. In the case of Slovakia, for example, it noted with
concern
that “civilians may be tried by military courts in certain cases, including betrayal
of State
secrets, espionage and State security”. It recommended “that the Criminal Code
be
Lawyers 871
198Ibid., loc. cit.
199Ibid.
200Ibid., p. 133, para. 10.2
201Ibid., loc. cit.
202Ibid., p. 133, para. 10.3.
amended so as to prohibit the trial of civilians by military tribunals in any
circumstances”.203 With regard to Peru, the Committee welcomed “with
satisfaction”
the abolition of “faceless” courts, and “the fact that the offence of terrorism has
been
transferred from the jurisdiction of the military courts to that of the ordinary
criminal
courts”.204 However, the Committee deplored the fact “that the military courts
continue to have jurisdiction over civilians accused of treason, who are tried
without
the guarantees provided for in article 14 of the Covenant”. Referring to General
Comment No. 13 on article 14, it emphasized that “the jurisdiction of military
courts
over civilians is not consistent with the fair, impartial and independent
administration
of justice”.205
With regard to Uzbekistan, the Committee noted with concern “that military
courts have broad jurisdiction”, which also covers “civil and criminal cases when,
in the
opinion of the executive, the exceptional circumstances of a particular case do
not allow
the operation of the courts of general jurisdiction. The Committee [noted] that
the State
party has not provided information on the definition of ‘exceptional
circumstances’ and
[was] concerned that these courts have jurisdiction to deal with civil and criminal
cases
involving non-military persons, in contravention of articles 14 and 26 of the
Covenant.
The State party should adopt the necessary legislative measures to restrict the
jurisdiction of the military courts to trial of members of the military accused of
military
offences.”206 Lastly, the Committee recommended that Guatemala “amend the
law to
limit the jurisdiction of the military courts to the trial of military personnel who
are
accused of crimes of an exclusively military nature”.207
*****
In the Castillo Petruzzi et al. case, the alleged victims had been convicted of
treason by a “faceless” military tribunal and sentenced to life imprisonment. As
the
charge was treason, the procedure called “for a summary proceeding ‘in the
theatre of
operations,’ before ‘faceless’ judges” and actions seeking “judicial guarantees”
were not
allowed.208 Mr. Castillo Petruzzi himself had been convicted of treason by a
Special
Military Court of Inquiry and sentenced to “life imprisonment, with complete
disqualification for life, continuous confinement to his cell for the first year of
incarceration, and then forced labor”. This ruling was upheld by the Special
Military
Tribunal and a motion for nullification of the judgment was subsequently rejected
by
the Special Tribunal of the Supreme Court of Military Justice.209 At the time of the
trial
a state of emergency was in effect in the Department of Lima and the
Constitutional
Province of Callo and the following guarantees of the Peruvian Constitution were
suspended: inviolability of domicile, freedom of movement, right of assembly, as
well
as arrest and appearance before a judge.210 With regard to Mr. Castillo Petruzzi’s
trial, it
203UN doc. GAOR, A/52/40 (vol. I), p. 60, para. 381; emphasis added.
205Ibid., p. 47, para. 12.
206Ibid., pp. 61-62, para. 15.
207Ibid., p. 96, para. 20.
208I-A Court HR, Castillo Petruzzi et al Case, judgment of May 30, 1999, Series C, No. 52, p. 162, para.
86.10.
209Ibid., pp. 170-171, paras. 86.36 and 86.40-86.43.
210Ibid, pp. 159-160, para. 86.5.
was established that his lawyer was not allowed to confer with him “in private
either
before the preliminary hearing or even before the ruling of first instance was
delivered”,
that Mr. Castillo Petruzzi “was blindfolded and in handcuffs for the duration of
the
preliminary hearing” and that neither he nor his lawyer “was shown the
prosecution’s
evidence, nor was the defence attorney permitted to cross-examine the
witnesses
whose testimony appeared in the police investigation report.”211
The Inter-American Court of Human Rights concluded, on the following
grounds, that article 8(1) of the American Convention on Human Rights had been
violated in this case:
“128. …Transferring jurisdiction from civilian courts to military courts,
thus allowing military courts to try civilians accused of treason, means that
the competent, independent and impartial tribunal previously established
by law is precluded from hearing these cases. In effect, military tribunals
are not the tribunals previously established by law for civilians. Having no
military functions or duties, civilians cannot engage in behaviors that
violate military duties. When a military court takes jurisdiction over a
matter that regular courts should hear, the individual’s right to a hearing by
a competent, independent and impartial tribunal previously established by
law and, a fortiori, his right to due process are violated. That right to due
process, in turn, is intimately linked to the very right of access to the courts.
129. A basic principle of the independence of the judiciary is that every
person has the right to be heard by regular courts, following procedures
previously established by law. States are not to create ‘(t)ribunals that do
not use the duly established procedures of the legal process…to displace
the jurisdiction belonging to the ordinary courts or judicial tribunals.’
130. Under Article 8(1) of the American Convention, a presiding judge
must be competent, independent and impartial. In the case under study,
the armed forces, fully engaged in the counter-insurgency struggle, are also
prosecuting persons associated with insurgency groups. This considerably
weakens the impartiality that every judge must have. Moreover, under the
Statute of Military Justice, members of the Supreme Court of Military
Justice, the highest body in the military judiciary, are appointed by the
minister of the pertinent sector. Members of the Supreme Court of
Military Justice also decide who among their subordinates will be
promoted and what incentives will be offered to whom; they also assign
functions. This alone is enough to call the independence of the military
judges into serious question.
131. This Court has held that the guarantees to which every person
brought to trial is entitled must be not only essential but also judicial.
‘Implicit in this conception is the active involvement of an independent
and impartial judicial body having the power to pass on the lawfulness of
measures adopted in a state of emergency.’”212
Lawyers 873
211Ibid., p. 168, para. 86.30.
212Ibid., pp. 196-197, paras. 128-131; footnotes omitted. In para. 129 the Court quoted Principle 5 of the
United Nations Basic
Principles on the Independence of the Judiciary.
The Court concluded “that the military tribunals that tried the alleged victims
for the crimes of treason did not meet the requirements implicit in the
guarantees of
independence and impartiality that Article 8(1) of the American Convention
recognizes
as essentials of due process of law”. A further problem was that the judges
presiding
over the treason trial were “faceless”, that the defendants had “no way of
knowing the
identity of their judge” and were therefore unable to assess their competence.213
*****
The European Court of Human Rights examined the conformity of the
martial law tribunals in Turkey with article 6(1) of the European Convention on
Human
Rights. In the Yalgin and Others case, for instance, two of the applicants
submitted that
their right to a fair hearing had been breached as a consequence of their
conviction by
the Ankara Martial Law Court which lacked independence and impartiality. The
European Court noted that the Martial Law Court had been “set up to deal with
offences aimed at undermining the constitutional order and its democratic
regime”. It
concluded, however, that it was not its task “to determine in abstracto whether it
was
necessary to set up such courts in a Contracting State or to review the relevant
practice,
but to ascertain whether the manner in which one of them functioned infringed
the
applicants’ right to a fair trial”.214 The Martial Law Courts in Turkey have five
members:
two civilian judges, two military judges and an army officer. The question of the
independence and impartiality of the military judges and the army officer were
considered together, while the independence and impartiality of the two civilian
judges
were not challenged.
The military judges chosen “were appointed with the approval of the Chief of
Staff and by a decree signed by the Minister of Defence, the Prime Minister and
the
President of the Republic. The army officer, a senior colonel…was appointed on
the
proposal of the Chief of Staff and in accordance with the rules governing the
appointment of military judges. This officer [was] removable on the expiry of one
year
after his appointment.”215 With regard to the existence of safeguards to protect
the
members of the Martial Law Court against outside pressure, the European Court
noted
that “the military judges undergo the same professional training as their civilian
counterparts” and that they “enjoy constitutional safeguards identical to those of
civilian judges. They may not be removed from office or made to retire early
without
their consent; as regular members of a Martial Law Court they sit as individuals.
According to the Constitution, they must be independent and no public authority
may
give them instructions concerning their judicial activities or influence them in the
performance of their duties.”216
However, three other aspects of their status called into question their
independence and impartiality:
213 Ibid., p. 197, paras. 132-133.
214 Eur. Court HR, Case of Yalgin and Others v. Turkey, judgment of 25 September 2001, paras. 43-44 of the
text of the judgment
215 Ibid., para. 40.
216 Ibid., para. 41.
_ first, “the military judges are servicemen who still belong to the army, which in turn
takes
orders from the executive”;
_ second, “as the applicant rightly pointed out, they remain subject to military
discipline and
assessment reports are compiled on them for that purpose. They therefore need
favourable
reports both from their administrative superiors and their judicial superiors in order to
obtain promotion”;
_ third, “decisions pertaining to their appointment are to a great extent taken by the
administrative authorities and the army”.217
Lastly, the army officer on the Martial Law Court was “subordinate in the
hierarchy to the commander of the martial law and/or the commander of the
army
corps concerned” and was “not in any way independent of these authorities”.218
The European Court then observed that:
“even appearances may be of some importance. What is at stake is the
confidence which the courts in a democratic society must inspire in the
public and above all, as far as criminal proceedings are concerned, in the
accused. In deciding whether in a given case there is a legitimate reason to
fear that a particular court lacks independence or impartiality, the
standpoint of the accused is important without being decisive. What is
decisive is whether his doubts can be held to be objectively justified.”219
The Court further considered that:
“where, as in the present case, a tribunal’s members include persons who
are in a subordinate position, in terms of their duties and the organisation
of their service, vis-à-vis one of the parties, accused persons may entertain a
legitimate doubt about those persons’ independence. Such a situation
seriously affects the confidence which the courts must inspire in a
democratic society… In addition, the Court attaches great importance to
the fact that a civilian had to appear before a court, composed, even if only
in part, of members of the armed forces.”220
In the light of all these considerations, the Court was of the opinion that:
“the applicants – tried in a Martial Law Court on charges of attempting to
undermine the constitutional order of the State – could have legitimate
reason to fear about being tried by a bench which included two military
judges and an army officer under the authority of the officer commanding
the state of martial law. The fact that two civilian judges, whose
independence and impartiality are not in doubt, sat on that court makes no
difference in this respect.”221
Lawyers 875
217Ibid., para. 42.
218Ibid., loc. cit.
219Ibid., para. 45.
220Ibid., para. 46.
221Ibid., para. 47.
The Court therefore concluded that there had been a violation of article 6(1)
of the Convention since “the applicants’ fears as to the Martial Law Court’s lack
of
independence and impartiality [could] be regarded as objectively justified”.222
*****
It seems clear that, at the present stage of development of international human
rights law, the international monitoring bodies are unlikely to conclude that
special courts
are per se contrary to human rights law but will tend to consider whether they
fulfil the
due process guarantees such law prescribes, including the right to be tried by an
independent and impartial tribunal at all times. When military officers and other
members
of the armed forces form part of a special tribunal judging a civilian, the
international
monitoring bodies have invariably concluded that such tribunals are not
independent and
impartial as required by international human rights law (see also Chapter 4,
section 4.7).
Every person has the right at all times to be tried by a court or tribunal
which is competent, independent and impartial and which respects the
right
to a fair trial/due process guarantees as well as the right to be presumed
innocent until proved guilty.
Trials by special courts may not per se violate the right to a fair
hearing/due process guarantees. However, vigilance is required to ensure
that such courts comply with all basic requirements of a fair trial/due
process guarantees, including the requirement that the court should be
competent, independent and impartial. Like all regular courts, specially
established tribunals must also strictly respect the principle of equality
before the law and the prohibition of discrimination.
Military courts are not competent, a priori, to try civilians suspected of
having committed criminal acts, since such courts are unlikely to dispense
justice fairly, independently and impartially.
The fair trial/due process standards laid down in international
humanitarian
law establish a minimum threshold beneath which no State may at any
time
lower fair trial/due process guarantees. As these standards are laid down
for
armed conflicts of an international or internal character, crisis situations of
a
less serious nature call for higher standards.
The minimum guarantees for criminal trials prescribed in article
14(3) of the International Covenant on Civil and Political Rights, article
8(2) of the American Convention on Human Rights and article 6(3) of
the European Convention on Human Rights provide an important, if
insufficient, yardstick for fair trial guarantees that should be applicable at
all times, including in public emergencies threatening the life of the nation
(universal and European levels) or the independence or security of the
State
(the Americas).
222Ibid., para. 48.
5. The Condition of Consistency

with Other International
Legal Obligations
Article 4(1) of the International Covenant on Civil and Political Rights, article
27(1) of the American Convention on Human Rights and article 15(1) of the
European
Convention on Human Rights lay down the condition that derogatory measures
must
not be “inconsistent with” a State party’s “other obligations under international
law”.
The same condition is laid down in article 30(1) of the European Social Charter
and in
article F(1) of the Charter as revised.
The term “other obligations under international law” is broad and can in
theory be interpreted to comprise any legal obligation derived from an
international
treaty or customary law, or even general principles of law, that is relevant to the
enjoyment of the human rights and fundamental freedoms affected by a
derogation. In
General Comment No. 29, the Human Rights Committee states in this regard
that:
“no measure derogating from the provisions of the Covenant may be
inconsistent with the State party’s other obligations under international law,
particularly the rules of international humanitarian law. Article 4 of the
Covenant cannot be read as a justification for derogation from the Covenant
if such derogation would entail a breach of the State’s other obligations,
whether based on treaty or general international law. This is reflected also in
article 5, paragraph 2, of the Covenant according to which there shall be no
restriction upon or derogation from any fundamental rights recognized in
other instruments on the pretext that the Covenant does not recognize such
rights or that it recognizes them to a lesser extent.”223
To enable the Committee “to take a State party’s other international
obligations into account when it considers whether the Covenant allows the State
party
to derogate from specific provisions of the Covenant”, States parties should,
when
invoking article 4(1) or submitting their periodic reports, “present information on
their
other international obligations relevant for the protection of the rights in
question, in
particular those obligations that are applicable in times of emergency [and]
should duly
take into account the developments within international law as to human rights
standards applicable in emergency situations.”224
In the case of countries that have ratified both the International Covenant on
Civil and Political Rights and the American Convention on Human Rights, it is of
particular importance for the Human Rights Committee to examine whether
measures
derogating from a State party’s obligations under the Covenant are inconsistent
with its
obligations under the American Convention, which contains a much longer list of
non-derogable rights.
*****
Lawyers 877
224Ibid, pp. 204-205, para. 10.
The European Court of Human Rights has made it clear that its function
under the European Convention requires it to examine the consistency of
derogatory
measures with a Contracting State’s “other obligations under international law”
proprio
motu.225 However, in both the Lawless case and the Ireland v. the United
Kingdom case, the
Court had no data before it to suggest that the derogating State would have
disregarded
such obligations. In the latter case, it noted in particular that “the Irish
Government
never supplied to the Commission or the Court precise details on the claim
formulated
or outlined on this point in their application”.226 As these cases show, although
the
Court has a duty to examine proprio motu the consistency of derogatory
measures with
the State’s “other obligations under international law”, it relies heavily on the
arguments submitted by the party alleging a violation of this principle rather
than
carrying out an in-depth examination itself.
In the Brannigan and McBride case, the applicant argued that the United
Kingdom Government had violated the consistency principle in article 15(1) of
the
Convention since the public emergency had not been “officially proclaimed” as
required by article 4 of the International Covenant. The Court observed on this
occasion that it was not its role to seek to define authoritatively the meaning of
the
terms “officially proclaimed” in article 4 of the Covenant, but it had nevertheless
to
examine whether there was “any plausible basis for the applicant’s argument in
this
respect”.227 It concluded, however, that there was “no basis for the applicant’s
arguments”, referring in this connection to the statement in the House of
Commons by
the Secretary of State for the Home Department in which he “explained in detail
the
reasons underlying the Government’s decision to derogate and announced that
steps
were being taken to give notice of derogation under both Article 15 of the
European
Convention and Article 4 of the International Covenant. He added that there was
‘a
public emergency within the meaning of these provisions in respect of terrorism
connected with the affairs of Northern Ireland in the United Kingdom.’”228 In the
Court’s view, this statement, “which was formal in character and made public
the
Government’s intentions as regards derogation, was well in keeping with the
notion of
an official proclamation”.229
Lastly, in the Marshall case the Court stated that it found “nothing in the
applicant’s reference to the observations of the United Nations Human Rights
Committee to suggest that the (United Kingdom) Government must be
considered to
be in breach of their obligations under the International Covenant on Civil and
Political
Rights by maintaining their derogation after 1995”. The applicant could not
therefore
maintain “that the continuance in force of the derogation was incompatible with
the
authorities’ obligations under international law”.230
225Eur. Court HR, Lawless Case (Merits), judgment of 1 July 1961, Series A, No. 3, p. 60, paras. 40-41.
226Ibid., p. 60, para. 41, and Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January
1978, Series A, No. 25, p. 84,
para. 222.
A, No. 258-B, p. 57, para. 72.
228Ibid., p. 57, para. 73.
229Ibid., loc. cit.
230Eur. Court HR, Marshall case, decision on the admissibility of 10 July 2001, p. 11 of the decision as
The jurisprudence of the European Court of Human Rights shows, in other
words, that unless the applicant has provided clear and well-founded
submissions
regarding the respondent State’s alleged failure to act in conformity with its
“other
obligations under international law”, the Court will not entertain the complaint.
When resorting to measures derogating from their obligations under
international human rights law, States must ensure that these measures
are not inconsistent with their “other obligations under international law”
such as higher absolute human rights standards, humanitarian law
standards or any other relevant principles binding on the derogating
States by virtue of international treaty or customary law or general
principles of law.
6. The Condition of
Non-Discrimination
According to article 4(1) of the International Covenant on Civil and Political
Rights and article 27(1) of the American Convention on Human Rights,
derogatory
measures must “not involve discrimination solely on the ground of race, colour,
sex,
language, religion or social origin”.
Article 15(1) of the European Convention on Human Rights contains no such
reference to the principle of non-discrimination. To the extent that a Contracting
State
to the European Convention is also a State party to the International Covenant, it
would not be allowed to take derogatory measures on the grounds listed above
even
under article 15 of the Convention, since such measures must not be
“inconsistent”
with the State’s “other obligations under international law”. In any event, there is
a
certain flexibility inherent in the principle of equality and non-discrimination that
enables derogating States to adjust their measures to the specific needs of the
crisis
situation without violating their treaty obligations. As noted in Chapter 13 of this
Manual, it does not follow from the principle of equality and non-discrimination
that all
distinctions made between people are illegal under international law. However,
differentiations are lawful only if they pursue a legitimate aim and are
proportionate to/reasonable in terms of that legitimate aim. To the
extent that
differential derogatory measures meet these criteria both in general and in the
specific
case concerned, they are lawful. As the principle of equality and non-
discrimination is a
fundamental rule of both international human rights law and general
international law,
derogatory measures that discriminate between persons or groups of persons
cannot
under any circumstances be considered lawful, even under treaties that do not
include
expressis verbis a prohibition on discrimination in the derogation provision.
*****
Lawyers 879
The Human Rights Committee noted in General Comment No. 29 that
although article 26 of the Covenant or the other provisions relating to
non-discrimination (namely, arts. 2, 3, 14(1), 23(4), 24(1) and 25)
“have not been listed among the non-derogable provisions in article 4,
paragraph 2, there are elements or dimensions of the right to
non-discrimination that cannot be derogated from in any circumstances.
In particular, this provision of article 4, paragraph 1, must be complied
with if any distinctions between persons are made when resorting to
measures that derogate from the Covenant.”231
*****
The question of discrimination in the employment of extrajudicial powers of
arrest and detention were at issue in the Ireland v. the United Kingdom case,
although the
European Court of Human Rights decided, by fifteen to two, that it had not been
established that there had been discrimination contrary to article 14 read in
conjunction
with article 5 of the European Convention.232 The Irish Government had argued
that
the exceptional powers were at first used only against “persons suspected of
engaging
in, or of possessing information about, IRA terrorism” and that “later on, they
were
also utilised, but to a far lesser extent, against supposed Loyalist terrorists”.233
Analysing the difference in treatment between Loyalist and Republican
terrorism during the first phase of the period under consideration (1971 until
end of
March 1972), the Court concluded that “there were profound differences
between
Loyalist and Republican terrorism. At the time in question, the vast majority of
murders, explosions and other outrages were attributable to Republicans” who
had a
“far more structured organisation” and “constituted a far more serious menace
than the
Loyalist terrorists” who could more frequently be brought before the criminal
courts.234
However, the second period examined (30 March 1972 – 4 February 1973)
gave rise to
“delicate questions”. There was a “spectacular increase in Loyalist terrorism”. It
seemed beyond doubt to the Court “that the reasons that had been influential
before 30
March 1972 became less and less valid as time went on. However, the Court
[considered] it unrealistic to carve into clear-cut phases a situation that was
inherently
changing and constantly evolving” and, “bearing in mind the limits on its powers
of
review, the Court [could not] affirm that, during the period under consideration,
the
United Kingdom violated Article 14, taken together with Article 5, by employing
the
emergency powers against the IRA alone.”235 The aim pursued during this time –
“the
elimination of the most formidable organisation first of all – could be regarded as
legitimate and the means employed [did] not appear disproportionate.”236
231UN doc. GAOR, A/56/40 (Vol. I), Report HRC, p. 204, para. 8.
95.
233Ibid., p. 85, para. 225.
234Ibid., p. 86, para. 228.
235Ibid., pp. 86-87, para. 229.
236Ibid., p. 87, para. 230.
However, 5 February 1973 marked a turning-point in that from then on
“extrajudicial deprivation was used to combat terrorism as such…and no longer
just a
given organisation”. Taking into account the full range of the processes of the
law
applied in the campaign against the two categories of terrorists, the Court found
that
“the initial difference of treatment did not continue during the last period
considered”.237
When resorting to measures derogating from their legal obligations under
the International Covenant on Civil and Political Rights and the
American Convention on Human Rights, States parties must ensure
that these measures do not “involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin”.
All derogating States must at all times guarantee the principle of
equality and the prohibition of discrimination which is a fundamental
principle of international human rights law and general international
law. According to international jurisprudence, the prohibition of
discrimination is inherently flexible and allows derogating States to take
measures that are strictly necessary to overcome an emergency situation
provided that the measures pursue a legitimate aim and are
reasonable/proportionate in the light of that aim.
7. The Condition of
International Notification
When States parties to the three main treaties dealt with in this chapter make
use of their right to derogate, they also have a legal obligation to comply with
the regime
of international notification. As shown in subsection 2.2 above, acceptance of
this
obligation was one of the essential elements introduced by the drafters to
prevent abuse
of the right to derogate. Although the notification provisions in the various
treaties are
not identical, they resemble each other in many ways. Article 4(3) of the
International
Covenant reads as follows:
“Any State Party to the present Covenant availing itself of the right of
derogation shall immediately inform the other States Parties to the present
Covenant, through the intermediary of the Secretary-General of the
United Nations, of the provisions from which it has derogated and of the
reasons by which it was actuated. A further communication shall be made,
through the same intermediary, on the date on which it terminates such
derogation.”
Lawyers 881
237Ibid., pp. 87-88, para. 231.
The Human Rights Committee holds that “notification is essential not only
for the discharge of the Committee’s functions, in particular in assessing whether
the
measures taken by the State party were strictly required by the exigencies of the
situation, but also to permit other States parties to monitor compliance with the
provisions of the Covenant”.238 It emphasizes “the obligation of immediate
international notification whenever a State party takes measures derogating
from its
obligations under the Covenant. The duty of the Committee to monitor the law
and
practice of a State party for its compliance with article 4 does not depend on
whether
that State has submitted a notification.”239
In view of the “summary character” of many of the notifications received in
the past, the Committee emphasizes that “the notification should include full
information about the measures taken and a clear explanation of the reasons for
them,
with full documentation attached regarding the law. Additional notifications are
required if the State party subsequently takes further measures under article 4,
for
instance by extending the duration of a state of emergency. The requirement of
immediate notification applies equally in relation to the termination of
derogation.
These obligations have not always been respected.”240
*****
According to article 27(3) of the American Convention on Human Rights:
“Any State Party availing itself of the right of suspension shall immediately
inform the other States Parties, through the Secretary General of the
Organization of American States, of the provisions the application of
which it has suspended, the reasons that gave rise to the suspension, and
the date set for the termination of such suspension.”
As in the case of article 4(3) of the Covenant, a State derogating under the
American Convention must (1) immediately notify other States parties about
the
suspension, (2) submit information about the provisions which it has suspended
and
(3) state the reasons for the suspension. The State party must also give a date
for the
termination of the suspension. Article 27(3) does not, on the other hand,
expressly
oblige States parties to submit a second notice after the termination of the
suspension.
*****
Article 15(3) of the European Convention stipulates that:
“Any High Contracting Party availing itself of this right of derogation shall
keep the Secretary-General of the Council of Europe fully informed of the
measures which it has taken and the reasons therefor. It shall also inform
the Secretary-General of the Council of Europe when such measures have
ceased to operate and the provisions of the Convention are again being
fully executed.”
239Ibid., loc. cit.
240Ibid.
It is noteworthy that article 15(3) does not expressly require the derogating
State to indicate the provisions from which it is derogating. However, the terms
“fully
informed” indicate that the State must provide comprehensive information about
the
derogatory measures taken. The European Court of Human Rights has
competence to
examine proprio motu the derogating State’s compliance with article 15(3) in
cases
brought before it. It follows from its case law that the notification must be
submitted
“without delay”, a condition that was considered fulfilled in the Lawless case, in
which
there was a twelve-day delay between the entry into force of the derogatory
measures
and submission of the notification.241 In the same case the Court concluded that
the
Government had given the Secretary-General “sufficient information of the
measures
taken and the reasons therefor” when explaining in writing that “the measures
had been
taken in order ‘to prevent the commission of offences against public peace and
order
and to prevent the maintaining of military or armed forces other than those
authorised
by the Constitution’.” The Court further noted that enclosed with the notice was
a copy
of the relevant emergency legislation and the proclamation that brought it into
force.242
*****
Article 30(2) of the European Social Charter and article F(2) of the revised
Charter contain in substance a similar obligation of notification, although it is
sufficient
that the notification is submitted “within a reasonable lapse of time”.
Although the conditions vary somewhat according to the treaty concerned,
it may be said in general that a State party, when exercising its right to
derogate under the international human rights treaties, must swiftly notify
the other States parties of the derogatory measures, through the
secretary-general of the organization concerned, describing the measures
in
sufficient detail, stating the reasons why they have been taken and, under
the International Covenant on Civil and Political Rights and the
American Convention on Human Rights, specifying the provisions from
which they derogate.
The condition of international notification is an important means of
preventing abuse of the right to derogate since it allows improved
monitoring of State action by other States parties and the monitoring
bodies.
Lawyers 883
242Ibid., loc. cit.

and Lawyers in Ensuring the
Effective Protection of Human
Rights in Emergency Situations
The rights and freedoms of the human person are never as fragile as in times
of internal or international upheaval. To fend off an emergency, Governments
often
decide to take measures that interfere, sometimes drastically, with such rights
as the
right to liberty and security, the right to due process of law before an
independent and
impartial tribunal, the right to effective remedies for human rights violations, the
right
to privacy, and the right to freedom of expression, association and assembly.
This
chapter has shown, however, that under international human rights law,
independent
and impartial courts must, in the first place, be allowed to continue functioning
freely
during an emergency situation for the purpose of ensuring the effective
protection of
rights that can never in any circumstances be derogated from. Second, they
must, at
least under the International Covenant on Civil and Political Rights and the
American
Convention on Human Rights, remain competent to exercise control so that the
derogatory measures do not – either in general or in specific cases – exceed the
limits of
what is strictly required to deal with the emergency situation. Lastly, under all
treaties
courts must be available to ensure that rights that are not derogated from
continue to be
fully ensured in practice.
These basic legal requirements imply that, even in emergency situations,
judges, prosecutors and lawyers must be allowed to pursue their professional
responsibilities impartially and independently, free from outside pressure or
interference. The legal professions must be particularly vigilant in preventing any
trespasses and excesses in the field of human rights committed in the name of
an
emergency situation, whether genuine or not. As seen in this chapter, even the
fight
against terrorism must comply with the fundamental rules protecting the human
person
from torture or other forms of ill-treatment, from arbitrary detention and from
unfair
trials by courts that fail to provide guarantees of due process. It is the
professional duty
of judges, prosecutors and lawyers to do their utmost to see to it that the
principle of
legality, the rule of law and fundamental human rights are effectively
guaranteed even
when a country is in a state of upheaval.
The duty of prosecutors forcefully to investigate and prosecute violations of
such rights as the right to life and the right to physical integrity, liberty and
security also
remains intact. Prosecutors must guard against any act that violates these rights
such as
abduction, involuntary disappearances, extrajudicial killings, torture or other
forms of
ill-treatment, unacknowledged detention or other forms of arbitrary deprivation
of
liberty. The legal duty of States to prevent, investigate, prosecute, punish and
redress
these kinds of human rights violations are equally valid in emergency situations.
For their part, lawyers must remain committed to the vigorous defence of the
rights and freedoms of the human person even in emergency situations,
although their
conditions of work may at such times be particularly challenging.
Contrary to what may be believed, international human rights law provides a
multitude of legal prescriptions for managing emergency situations that are so
severe
that they constitute a threat to the life of the nation or to the independence or
security
of the State. In such situations, the bedrock of human rights principles must
remain in
force, and it is the responsibility of the legal professions to help ensure that this
is in fact
the case.
Public opinion may call for strong measures and vengeance in response to a
severe crisis, and Governments may well cater to these demands by resorting to
drastic
and far-reaching security measures. However, peace and security are best
served by an
evenhanded administration of justice, also in times of adversity. It is a good
lesson to
keep in mind that at no time in history has too much justice and respect for
individual
rights and freedoms been harmful to national and international peace, security
and
prosperity. In times of crisis, a concerted effort by all actors in society, including
judges,
prosecutors and lawyers, to maintain the highest possible standards of human
rights
protection is not only more difficult but also more necessary than ever to
contribute to
the restoration of a constitutional order in which human rights and fundamental
freedoms can again be fully enjoyed by all.
*****
Lawyers 885

Human Rights

Caricato da

Informazioni sul documento

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Human Rights

Caricato da

Copyright:

Formati disponibili

OFFICE OF THE HIGH COMMISSIONER FOR HUMAN RIGHTS

IN COOPERATION WITH THE

5. The Role of the Legal Professions

2. The Major United Nations

2.2 The International Covenant on Economic,

4. Instruments adopted by the

3.1.5 The implementation mechanism

4. European Human Rights Treaties

4.1.5 The implementation mechanism

4.4 The European Convention for the Prevention of

5. International Law and the

6.5 Codes of professional discipline

3. The Right to Liberty and

4.3 Detention after conviction

4.4 Arrest and detention for non-compliance with the

4.6 Detention in order to prevent flight

4.7 Administrative detention

4.9 The right to be promptly brought before a judge

5.1 The notion of “reasonable time”

6. The Right to Have the

6.2 The notions of “speedily” and “without delay”

4. The Right to Equality before the

6.2 The right to be treated with humanity and

6.3 The right to be notified of the charges in a

3.10 The right to a reasoned judgement

5. The Right of Appeal

7. The Right to a Fair Trial and

2.3 The notions of torture and cruel, inhuman

4.3 Personal hygiene, food, health and

4.6 Solitary confinement

5. Contacts with the Outside

2.3 The term “competent authority”

3.3 Legal safeguards

5.2 The duration of non-custodial measures

4. The Rights of the Child in the

5. The Aims of Juvenile Justice

8. The Child and Deprivation of

9. The Rights of the Child and

11. The Child as Victim or Witness

Relevant Legal Instruments

2. Women’s Right to Legal

3. Women’s Right to Equality

4. Women’s Right to Respect for

4.4 Violence against women as crimes against

5. Women’s Right to Freedom

5.2 The practice of slavery, forced and compulsory

6. The Right to Equality in respect

6.2 Equality of rights in terms of nationality laws

9. Women’s Right to Equal

10. Women’s Right to an Effective

12. Concluding Remarks

2. The Right to Freedom of

3. The Right to Freedom of

Relevant Legal Instruments

2. Selected Universal Legal

2.3 International Covenant on Civil and

3. Selected Regional Legal

3.9 Framework Convention for the Protection of

5. The Legal Obligations of States

8. Case-Study II: The Right to

9. The Role of Judges, Prosecutors

2.3 Treatment of victims in the administration

4. The Role of Judges, Prosecutors

2. The Notion of Public Emergency